SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report: October 13, 1998
(Date of earliest event reported)
Capco America Securitization Corporation
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(Exact name of registrant as specified in its charter)
Delaware 333-22133 13-3672336
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
Two World Financial Center, Building B, New York, New York 10281
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Address of Principal Executive Office
Registrant's telephone number, including area code: (212) 667-9300
<PAGE>
Item 5. Other Events.
Attached as Exhibit 4 is the Pooling and Servicing Agreement (as defined
below) for Capco America Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D7 (the "Certificates"). On September 30,
1998, Capco America Securitization Corporation (the "Company") caused the
issuance, pursuant to a Pooling and Servicing Agreement dated as of September
11, 1998 (the "Pooling and Servicing Agreement"), among the Company, as
depositor, The Capital Company of America Client Services LLC, as servicer,
AMRESCO Services, L.P., as co-servicer and operating advisor, AMRESCO
Management, Inc., as special servicer, LaSalle National Bank, as trustee and ABN
AMRO Bank N.V., as fiscal agent, of the Certificates, issued in eighteen
classes: the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class A-5,
Class PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-6H, Class V-1, Class V-2, Class R and Class LR Certificates.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Item 601(a) of Regulation S-K
Exhibit No. Exhibit No. Description
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1 4 Pooling and Servicing
Agreement dated as of
September 11, 1998.
<PAGE>
Pursuant to the requirements of the Securities Act of 1934, the Registrant
has duly caused this report to be signed on behalf of the Registrant by the
undersigned thereunto duly authorized.
CAPCO AMERICA SECURITIZATION
CORPORATION
By: /s/ Marlyn A. Marincas
-------------------------
Marlyn A. Marincas
Director
Date: October 13, 1998
EXECUTION COPY
===============================================================================
CAPCO AMERICA SECURITIZATION CORPORATION,
DEPOSITOR
THE CAPITAL COMPANY OF AMERICA CLIENT SERVICES LLC,
SERVICER
AMRESCO SERVICES, L.P.,
CO-SERVICER
AMRESCO MANAGEMENT, INC.,
INITIAL SPECIAL SERVICER
AMRESCO SERVICES, L.P.,
OPERATING ADVISOR
LASALLE NATIONAL BANK,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
--------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 11, 1998
-------------------------------------------------
Commercial Mortgage Pass-Through Certificates Series 1998-D7
================================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms....................................................4
SECTION 1.02. Certain Calculations............................................57
SECTION 1.03. Certain Constructions...........................................57
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase and Sale Agreement.....................................59
SECTION 2.02. Acceptance by Custodian and the Trustee.........................63
SECTION 2.03. Representations, Warranties and Covenants of the Depositor......64
SECTION 2.04. Representations, Warranties and Covenants of the Servicer,
Co-Servicer, Special Servicer, Operating Advisor and Trustee....78
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests....................................83
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions................83
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Co-Servicer to Act as Co-Servicer;
Special Servicer to Act as Special Servicer; Administration of
the Mortgage Loans..............................................85
SECTION 3.02. Liability of the Servicer, Co-Servicer and Special Servicer.....88
SECTION 3.03. Collection of Certain Mortgage Loan Payments....................88
SECTION 3.04. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.................................................88
SECTION 3.05. Collection Account, Distribution Account, Upper-Tier
Distribution Account, Default Interest Distribution Account,
Excess Interest Distribution Account, Repurchase Price Return
of Premium Distribution Account and Post-Lock Out Return of
Premium Distribution Amount.....................................90
SECTION 3.06. Permitted Withdrawals from the Collection Account...............93
SECTION 3.07. Investment of Funds in the Collection Account, the REO
Account, the
Lock-Box Accounts, the Cash Collateral Accounts, the
Interest Reserve Account and the Reserve Accounts...............96
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage...........................................98
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions..........................................102
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans..........105
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files................109
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation...................................................110
SECTION 3.13. Reports to the Trustee; Collection Account Statements..........113
SECTION 3.14. Annual Statement as to Compliance..............................118
SECTION 3.15. Annual Independent Public Accountants' Servicing Report........118
SECTION 3.16. Access to Certain Documentation................................119
SECTION 3.17. Title and Management of REO Properties and REO Account
Properties.....................................................119
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties...123
SECTION 3.19. Additional Obligations of the Servicer, Co-Servicer and
Special Servicer; Inspections..................................126
SECTION 3.20. Authenticating Agent...........................................127
SECTION 3.21. Appointment of Custodians......................................127
SECTION 3.22. Reports to the Securities and Exchange Commission;
Available Information..........................................128
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts
and Reserve Accounts..........................................131
SECTION 3.24. Property Advances..............................................131
SECTION 3.25. Appointment of Special Servicer................................132
SECTION 3.26. Transfer of Servicing Between Servicer or Co-Servicer
and Special Servicer; Record Keeping...........................133
SECTION 3.27. Interest Reserve Account.......................................137
SECTION 3.28. Limitations on and Authorizations of the Servicer, the
Co-Servicer and Special Servicer with Respect to Certain
Mortgage Loans.................................................137
SECTION 3.29. Intentionally Left Blank.......................................142
SECTION 3.30. Modification, Waiver, Amendment and Consents...................142
SECTION 3.31. Release of Servicing with Respect to Credit Lease Loans Upon
Securitization of the Related Other Notes......................146
SECTION 3.32 Servicing of Mortgage Loans subject to Co-Lending Agreements...146
SECTION 3.33. Engagement of Operating Advisor; Procedures....................148
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................153
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others..........166
SECTION 4.03. Compliance with Withholding Requirements.......................172
SECTION 4.04. REMIC Compliance...............................................172
SECTION 4.05. Imposition of Tax on the Trust Fund............................174
SECTION 4.06. Remittances; P&I Advances......................................175
SECTION 4.07. Grantor Trust Reporting........................................178
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................180
SECTION 5.02. Registration, Transfer and Exchange of Certificates............184
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates..............195
SECTION 5.04. Appointment of Paying Agent....................................196
SECTION 5.05. Access to Certificateholders' Names and Addresses..............196
SECTION 5.06. Actions of Certificateholders..................................197
ARTICLE VI
THE DEPOSITOR, THE SERVICER, THE CO-SERVICER,
THE OPERATING ADVISOR AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer, the Co-Servicer,
the Operating Advisor and the Special Servicer.................198
SECTION 6.02. Merger or Consolidation of the Servicer, the Co-Servicer,
the Operating Advisor or the Special Servicer..................198
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer,
the Co-Servicer, the Operating Advisor, the Special Servicer
and Others.....................................................199
SECTION 6.04. Limitation on Resignation of the Servicer, the Co-Servicer,
the Operating Advisor and the Special Servicer; Termination
of the Servicer, the Co-Servicer, the Operating Advisor and
the Special Servicer...........................................200
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer, the Co-Servicer, the Operating Advisor and the
Special Servicer...............................................201
SECTION 6.06. Servicer, Co-Servicer or Special Servicer as Owner of a
Certificate....................................................202
SECTION 6.07. Special Termination of Servicer................................203
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..............................................204
SECTION 7.02. Trustee to Act; Appointment of Successor.......................208
SECTION 7.03. Notification to Certificateholders.............................210
SECTION 7.04. Other Remedies of Trustee......................................210
SECTION 7.05. Waiver of Past Events of Default; Termination..................210
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee..............................................212
SECTION 8.02. Certain Matters Affecting the Trustee..........................214
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates or
Mortgage Loans.................................................216
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates..................218
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification........218
SECTION 8.06. Eligibility Requirements for Trustee...........................220
SECTION 8.07. Resignation and Removal of the Trustee.........................221
SECTION 8.08. Successor Trustee and Fiscal Agent.............................222
SECTION 8.09. Merger or Consolidation of Trustee.............................223
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................223
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent............225
ARTICLE IX
TERMINATION
SECTION 9.01. Termination....................................................226
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts..................................................231
SECTION 10.02. Limitation on Rights of Certificateholders....................231
SECTION 10.03. Governing Law.................................................232
SECTION 10.04. Notices.......................................................232
SECTION 10.05. Severability of Provisions....................................235
SECTION 10.06. Notice to the Depositor and Each Rating Agency................236
SECTION 10.07. Amendment.....................................................238
SECTION 10.08. Confirmation of Intent........................................240
SECTION 10.09. Streit Act....................................................241
SECTION 10.10. No Intended Third-Party Beneficiaries.........................241
<PAGE>
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1A Certificate
Exhibit A-2 Form of Class A-1B Certificate
Exhibit A-3 Form of Class A-2 Certificate
Exhibit A-4 Form of Class A-3 Certificate
Exhibit A-5 Form of Class A-4 Certificate
Exhibit A-6 Form of Class A-5 Certificate
Exhibit A-7 Form of Class PS-1 Certificate
Exhibit A-8 Form of Class B-1 Certificate
Exhibit A-9 Form of Class B-2 Certificate
Exhibit A-10 Form of Class B-3 Certificate
Exhibit A-11 Form of Class B-4 Certificate
Exhibit A-12 Form of Class B-5 Certificate
Exhibit A-13 Form of Class B-6 Certificate
Exhibit A-14 Form of Class B-6H Certificate
Exhibit A-15 Form of Class V-1 Certificate
Exhibit A-16 Form of Class V-2 Certificate
Exhibit A-17 Form of Class R Certificate
Exhibit A-18 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Form of Custodial Agreement
Exhibit G Securities Legend
Exhibit H-1 CCA Mortgage Loan Purchase and Sale Agreement
Exhibit H-2 Financing Trust Mortgage Loan Purchase and Sale Agreement
Exhibit I Form of Regulation S Transfer Certificate
Exhibit J Form of Transfer Certificate for Exchange or Transfer from Rule
144A Global Certificate to Regulation S Global Certificate during
the Restricted Period
Exhibit K Form of Transfer Certificate for Exchange or Transfer from Rule
144A Global Certificate to Regulation S Global Certificate after
the Restricted Period
Exhibit L Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global Certificate
Exhibit M-1 Form of Comparative Financial Status Report
Exhibit M-2 Form of Delinquent Loan Status Report
Exhibit M-3 Form of Historical Loan Modification Report
Exhibit M-4 Form of Historical Loss Estimate Report
Exhibit M-5 Form of REO Status Report
Exhibit M-6 Form of Watch List
Exhibit M-7 Form of Operating Statement Analysis Report
Exhibit M-8 Form of NOI Adjustment Worksheet
Exhibit M-9 CSSA 100.1 Set-Up Data Record Layout
Exhibit M-10 CSSA 100.1 Periodic Data Record Layout
Exhibit M-11 CSSA 100.1 Property Data File
Exhibit N Notice and Acknowledgement of Operating Advisor
Exhibit O Form of Operating Advisor Approval
Exhibit P Affiliated Mortgage Loans
<PAGE>
Pooling and Servicing Agreement, dated as of September 11, 1998, among
CAPCO America Securitization Corporation, as Depositor, The Capital Company of
America Client Services LLC, as Servicer, AMRESCO Services, L.P., as
Co-Servicer, AMRESCO Management, Inc., as Initial Special Servicer, AMRESCO
Services, L.P., as Operating Advisor, LaSalle National Bank, as Trustee, and ABN
AMRO Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have the
meanings specified in Article I hereof.)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Default Interest, the Default Interest Distribution Account,
the Excess Interest, the Excess Interest Distribution Account, the Post-Lock Out
Return of Premium Amount, the Repurchase Return of Premium Amount, the
Repurchase Price Return of Premium Distribution Account and the Post-Lock Out
Return of Premium Distribution Account (such portion of the Trust Fund, the
"Trust REMICs"), be treated for federal income tax purposes as two separate real
estate mortgage investment conduits (each, a "REMIC" or, in the alternative, the
"Lower-Tier REMIC" and the "Upper-Tier REMIC," respectively). The Class A-1A,
Class A-1B, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-6H
Certificates constitute "regular interests" in the Upper-Tier REMIC and the
Class R Certificates constitute the sole Class of "residual interests" in the
Upper-Tier REMIC for purposes of the REMIC Provisions. The Class LR Certificates
constitute the sole Class of "residual interests" in the Lower-Tier REMIC for
purposes of the REMIC Provisions. There are also 13 Classes of uncertificated
Lower-Tier Regular Interests issued under this Agreement (the Class A-1A-L,
Class A-1B-L, Class A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class B-1-L,
Class B-2-L, Class B-3-L, Class B-4-L, Class B-5-L, Class B-6-L and Class B-6H-L
Interests), each of which will constitute a regular interest in the Lower-Tier
REMIC. All such Lower-Tier Regular Interests will be held by the Trustee as
assets of the Upper-Tier REMIC. The parties intend (i) that the portions of the
Trust Fund representing the Default Interest, the Default Interest Distribution
Account, the Excess Interest, the Excess Interest Distribution Account, the
Post-Lock Out Return of Premium Amount, the Repurchase Return of Premium Amount
and the Repurchase Price Return of Premium Distribution Account will be treated
as a grantor trust under Subpart E of Part 1 of Subchapter J of the Code, (ii)
that the Class PS-1 Certificates represent pro rata undivided beneficial
interests in the portion of the Trust Fund consisting of the right to receive
the Repurchase Return of Premium Amount and the Repurchase Price Return of
Premium Distribution Account, (iii) that the Depositor is the beneficial owner
of the portion of the Trust Fund consisting of any Post-Lock Out Return of
Premium Amount and amounts thereof contained in the Post-Lock Out Return of
Premium Distribution Account, (iv) that the Class V-1 Certificates represent pro
rata undivided beneficial interests in the portion of the Trust Fund consisting
of the Default Interest, subject to the obligations to pay the Advance Interest
Amount, and the Default Interest Distribution Account and (v) that the Class V-2
Certificates represent pro rata undivided beneficial interests in the portion of
the Trust Fund consisting of the Excess Interest and the Excess Interest
Distribution Account.
The following table sets forth the designation and aggregate initial
Certificate Balance (or, with respect to the Class PS-1 Certificates, Notional
Balance) for each Class of Certificates comprising regular interests in the
Upper-Tier REMIC.
Certificate Balance
Class or Notional Balance Initial Rating(2)
----- ------------------- -----------------
Class A-1A $264,500,000 AAA/Aaa
Class A-1B 632,344,698 AAA/Aaa
Class PS-1(1) 1,245,617,638 AAA/Aaa
Class A-2 62,280,882 AA/Aa2
Class A-3 68,508,970 A/A2
Class A-4 59,166,838 BBB/Baa2
Class A-5 21,798,308 BBB-/Baa3
Class B-1 31,140,441 BB+/NR
Class B-2 28,026,397 BB/NR
Class B-3 15,570,220 BB-/NR
Class B-4 24,912,353 B/NR
Class B-5 15,570,221 B-/NR
Class B-6 21,797,309 NR
Class B-6H 1,000 NR
- ----------------------------
(1) The initial notional balance of Class PS-1 Certificates is equal to the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
(2) Rating Agencies (Fitch/Moody's)
Each of the Class V-1, Class V-2, Class R and Class LR Certificates do not
have a Certificate Balance or a notional balance. The Certificate Balance of any
Class of Certificates outstanding at any time represents the maximum amount
which holders thereof are entitled to receive as distributions allocable to
principal from the cash flow on the Mortgage Loans and the other assets in the
Trust Fund; provided, however, that in the event that amounts previously
allocated as Realized Losses to a Class of Certificates in reduction of the
Certificate Balance thereof are subsequently recovered (including without
limitation after the reduction of the Certificate Balance of such Class to
zero), such Class may receive distributions in respect of such recoveries in
accordance with the priorities set forth in Section 4.01.
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $1,245,617,638.
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer, the Co-Servicer, the Special Servicer, the Trustee, the Operating
Advisor and the Fiscal Agent agree as follows:
<PAGE>
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.
"ACCOR Credit Lease Loans": The Mortgage Loans secured, among other things,
by credit leases having ACCOR as the guarantor, which Mortgage Loans are
identified as Loan Numbers 23, 24, 26, 27, 29, 31, 32, 33 and 35 on the Mortgage
Loan Schedule.
"Act": The Securities Act of 1933, as it may be amended from time to time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the aggregate
amount of P&I Advances and Property Advances for which the Servicer, the
Co-Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, have not been reimbursed and Servicing Fees, Trustee Fees or Special
Servicing Compensation for which the Servicer, the Co-Servicer, the Trustee or
the Special Servicer, as applicable, has not been timely paid or reimbursed for
the number of days from (and including) the date on which such Advance was made
or such Servicing Fees, Trustee Fees or Special Servicing Compensation were due
to (but excluding) the date of payment or reimbursement of the related Advance
or other such amount, less any amount of interest previously paid on such
Advance or Servicing Fees, Trustee Fees or Special Servicing Compensation;
provided, that, with respect to a P&I Advance, in the event that the related
Borrower makes payment of the amount in respect of which such P&I Advance was
made with interest at the Default Rate, the Advance Interest Amount payable to
the Servicer, the Co-Servicer, the Trustee or the Fiscal Agent shall be paid (i)
first from the amount of Default Interest paid by the Borrower and (ii) to the
extent such amounts are insufficient therefor, from amounts on deposit in the
Collection Account.
"Advance Rate": A per annum rate equal to the sum of (i) the Prime Rate
(as most recently published in the "Money Rates" section of The Wall Street
Journal, New York edition, on or before the related Record Date) plus (ii) 1%,
compounded monthly as of each Servicer Remittance Date.
"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. The Trustee may obtain
and rely on an Officers' Certificate of the Servicer or Co-Servicer, as
applicable, the Operating Advisor, the Special Servicer or the Depositor to
determine whether any Person is an Affiliate of such party.
"Affiliated Mortgage Loan" shall mean any Mortgage Loan in which an
Affiliate of the Servicer holds any subordinate debt, preferred equity
investment or mezzanine debt of a related Borrower or its Affiliate, as listed
on Exhibit P as amended from time to time or otherwise identified by the
Servicer in accordance with this Agreement.
"Affiliated Person": Any Person (other than a Rating Agency) involved in
the organization or operation of the Depositor or an affiliate, as defined in
Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Airport Industrial Loan": The Mortgage Loan identified as Loan Number 7 on
the Mortgage Loan Schedule.
"Allocated Loan Amount": With respect to each Mortgaged Property, the
portion of the principal amount of the related Mortgage Loan allocated to such
Mortgaged Property in the applicable Mortgage, Loan Agreement or the Mortgage
Loan Schedule.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by Section 3.14 hereof and an annual report of an
Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to any Mortgage Loan that is
indicated on the Mortgage Loan Schedule as having a Revised Mortgage Rate, the
date upon which such Mortgage Loan commences accruing interest at such Revised
Mortgage Rate.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii)(A).
"Applicant": As defined in Section 5.05(a).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) 90% of the sum of the appraised values
of the related Mortgaged Properties (or, with respect to each Split Loan, the
pro rata portion of the Mortgaged Properties allocable to the related Split
Note) as determined by Updated Appraisals obtained by the Servicer or
Co-Servicer, as applicable, of the Mortgaged Properties securing such Mortgage
Loan over (ii) the sum of (A) to the extent not previously advanced by the
Servicer or Co-Servicer, as applicable, the Trustee or the Fiscal Agent, all
unpaid interest on such Mortgage Loan at a per annum rate equal to its Mortgage
Rate, (B) all unreimbursed Property Advances and all unreimbursed P&I Advances
(in each case, without duplication of any amounts in clause (A)), and all unpaid
interest on Advances at the Advance Rate, in respect of such Mortgage Loan and
(C) all due and unpaid real estate taxes, ground rents and assessments and
insurance premiums and all other amounts due and unpaid with respect to such
Mortgage Loan (which taxes, premiums and other amounts have not been the subject
of an Advance by the Servicer, Co-Servicer, the Trustee or the Fiscal Agent, as
applicable). If no Updated Appraisal has been received within the last 60 days
prior to the first Distribution Date on or after an Appraisal Reduction Event
has occurred, the value of the related Mortgaged Properties shall be equal to
30% of the Stated Principal Balance of such Mortgage Loan as of the date of the
related Appraisal Reduction Event (the "Servicer's Appraisal Estimate") and such
estimate shall be used for purposes of determining the Appraisal Reduction
Amount for such Distribution Date. Within 60 days (or such shorter period as
practical) after the Servicer or Co-Servicer, as applicable, receives notice or
is otherwise aware of the Appraisal Reduction Event, the Servicer shall obtain
an Updated Appraisal. On the first Distribution Date occurring on or after the
delivery of such appraisal, the Servicer or Co-Servicer, as applicable, shall
adjust the Appraisal Reduction Amount to take into account such appraisal
(regardless of whether the Updated Appraisal is higher or lower than the
Servicer's Appraisal Estimate). Each Appraisal Reduction Amount shall also be
adjusted to take into account any subsequent Updated Appraisal and annual letter
updates, as of the date of each such subsequent Updated Appraisal or letter
update.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the first
Distribution Date following the earliest of (i) the third anniversary of the
date on which an extension of the Maturity Date of such Mortgage Loan becomes
effective as a result of a modification of such Mortgage Loan by the Special
Servicer pursuant to the terms hereof, which extension does not change the
amount of Monthly Payments on the Mortgage Loan (unless during such extension
period the Borrower has been delinquent for 60 days or more, in which case, the
first Distribution Date following such 60 day delinquency), (ii) 60 days after
an uncured Delinquency (without regard to the application of any grace period)
occurs in respect of such Mortgage Loan, (iii) the date on which a reduction in
the amount of Monthly Payments on such Mortgage Loan, or a change in any other
material economic term of such Mortgage Loan (other than an extension of the
Maturity Date), becomes effective as a result of a modification of such Mortgage
Loan by the Special Servicer, (iv) the date a receiver has been appointed, (v)
the date a Borrower declares bankruptcy, (vi) the date a Mortgage Loan becomes
an REO Mortgage Loan, or (vii) any other event which, in the discretion of the
Servicer or the Co-Servicer, as applicable, and of which the Servicer or the
Co-Servicer, as applicable, becomes aware in performing its obligations
hereunder, in accordance with the Servicing Standard, would materially and
adversely impair the value of a Mortgaged Property and security for the related
Mortgage Loan. The Special Servicer shall notify the Servicer or the
Co-Servicer, as applicable, within five (5) days of its becoming aware of the
occurrence of any of the foregoing events.
"ARD Loan": A Mortgage Loan that substantially fully amortizes by its
maturity date but provides for a date on which a substantial amount of principal
will be due if the Borrower elects to prepay the Mortgage Loan in full on such
date.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the 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.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian, the
Special Servicer, the Operating Advisor, the Servicer or Co-Servicer shall be
responsible for determining whether any assignment is legally sufficient or in
recordable form.
"Assumption Fees": Any fees collected by the Servicer, Co-Servicer or
Special Servicer in connection with an assumption or modification of a Mortgage
Loan or substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all previously
undistributed Monthly Payments or other receipts on account of principal and
interest (including Unscheduled Payments and any Net REO Proceeds transferred
from an REO Account pursuant to Section 3.17(b)) on or in respect of the
Mortgage Loans, received by the Servicer or the Co-Servicer in the Collection
Period relating to such Distribution Date, (ii) all other amounts received by
the Servicer or the Co-Servicer in such Collection Period and required to be
placed in the Collection Account by the Servicer or the Co-Servicer pursuant to
Section 3.05 allocable to such Mortgage Loans, and including all P&I Advances
(excluding Subordinate Class Advance Amounts) made by the Servicer, the Trustee
or the Fiscal Agent in respect of such Distribution Date, (iii) for the
Distribution Date occurring in each March, the Withheld Amounts remitted to the
Distribution Account pursuant to Section 3.27(b), (iv) any late payments of
Monthly Payments received after the end of the Collection Period relating to
such Distribution Date but prior to the close of business on the Business Day
prior to the related Servicer Remittance Date and (v) any Servicer Prepayment
Interest Shortfalls remitted by the Servicer to the Collection Account, but
excluding the following:
(a) amounts permitted to be used to reimburse the Servicer, the
Co-Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, for previously unreimbursed Advances and interest thereon
as described in Section 3.06(ii) and (iii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and Trustee Fee and an amount representing
any applicable Special Servicing Compensation, each including interest
thereon at the Advance Rate as provided in this Agreement;
(c) all amounts in the nature of late fees (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees, which the Servicer or the
Co-Servicer or the Special Servicer is entitled to retain as Servicing
Compensation or Special Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance Proceeds
with respect to a Mortgage Loan which represents any unpaid Servicing
Fee, Trustee Fee and Special Servicing Compensation, including
interest thereon at the Advance Rate as provided in this Agreement, to
which the Servicer, Co-Servicer, Trustee and the Special Servicer,
respectively, are entitled;
(f) all amounts representing certain expenses reimbursable or payable to
the Servicer, the Co-Servicer, the Special Servicer, the Trustee or
the Fiscal Agent and other amounts permitted to be retained by the
Servicer or the Co-Servicer or withdrawn by the Servicer or the
Co-Servicer from the Collection Account to the extent expressly set
forth in this Agreement (including, without limitation, as provided in
Section 3.06 and including any indemnities provided for herein),
including interest thereon as provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Upper-Tier Distribution Account, the
Distribution Account, the Default Interest Distribution Account, the
Excess Interest Distribution Account, the Repurchase Price Return of
Premium Distribution Account, the Post-Lock Out Return of Premium
Distribution Account, the Interest Reserve Account, or any REO Account
or, to the extent payable to the Trustee or the Servicer under the
terms of the related Mortgage Loan, any Cash Collateral Account, any
Lock-Box Account or any Reserve Account or, in each case, in Permitted
Investments in which such funds may be invested;
(h) with respect to the Interest Reserve Loans and any Distribution Date
relating to each Interest Accrual Period ending in each February or
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 Mortgage Loan
as of the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the extent
such amounts are to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.27;
(i) all amounts received with respect to each Mortgage Loan previously
purchased or repurchased pursuant to Sections 2.03(d), 2.03(e), 3.18
or 9.01 during the related Collection Period and subsequent to the
date as of which the amount required to effect such purchase or
repurchase was determined;
(j) the amount reasonably determined by the Trustee to be necessary to pay
any applicable federal, state or local taxes imposed on the Upper-Tier
REMIC or the Lower-Tier REMIC under the circumstances and to the
extent described in Section 4.05;
(k) Prepayment Premiums and Return of Premium Amounts;
(l) Default Interest; and
(m) Excess Interest.
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee and the Servicer or Co-Servicer, as
applicable, shall have the right to require, as a condition to acknowledging the
status of any Person as a Beneficial Owner under this Agreement, that such
Person provide evidence at its expense of its status as a Beneficial Owner
hereunder.
"Bloomfield Purchase Agreement": With respect to certain Mortgage Loans not
originated by CCA, the agreement between CCA and Bloomfield Acceptance Company,
LLC pursuant to which CCA acquired such Mortgage Loans.
"Borrower": With respect to any Mortgage Loan, any obligor or obligors on
any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day on which
banking institutions in the States of New York, Georgia, Delaware Illinois or
Texas, or if the Class A-1A, Class A-1B or Class A-2 Certificates are listed on
the Luxembourg Stock Exchange, Luxembourg; are authorized or obligated by law,
executive order or governmental decree to be closed.
"Cash Collateral Account": With respect to any Mortgage 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 the Lock-Box Account monies are swept on a regular basis for
the benefit of the Trustee as successor to the Mortgage Loan Seller. 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 Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon in accordance with the terms of the related Mortgage Loan. The Servicer
or Co-Servicer, as applicable, shall be permitted to make withdrawals therefrom
for deposit into the Collection Account. To the extent not inconsistent with the
terms of the related Mortgage Loan, each such Cash Collateral Account shall be
an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage 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.
"Cash Deposit": An amount equal to all cash payments of principal and
interest received by the Mortgage Loan Seller in respect of the Mortgage Loans
prior to or on the Closing Date that are due after the Cut-off Date, to the
extent transferred to the Trust Fund pursuant to Section 2.01.
"CCA": The Capital Company of America LLC, a Delaware limited liability
company, or its successor. As applicable, "CCA" shall refer to Nomura Asset
Capital Corporation, a Delaware corporation, as predecessor of The Capital
Company of America LLC.
"CCA Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan Purchase
and Sale Agreement dated as of the Cut-off Date, by and between the Depositor
and CCA, a copy of which is attached hereto as Exhibit H-1.
"CCA Servicer": As defined in Section 6.07.
"Cedel": Citibank, N.A., as depositary for Cedel Bank, societe anonyme, or
its successor in such capacity.
"Certificate": Any Class A-1A, Class A-1B, Class PS-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-6H, Class V-1, Class V-2, Class R or Class LR
Certificate issued, authenticated and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates (other
than the Class PS-1, Class V-1, Class V-2, Class R and Class LR Certificates) or
Lower-Tier Regular Interests (a) on or prior to the first Distribution Date, an
amount equal to the aggregate initial Certificate Balance of such Class, as
specified in the Preliminary Statement hereto, (b) as of any date of
determination after the first Distribution Date, the Certificate Balance of such
Class of Certificates or Lower-Tier Regular Interests on the Distribution Date
immediately prior to such date of determination after distributions allocable to
principal have been made thereon and Realized Losses allocated thereto on such
prior Distribution Date; provided that for purposes of determining Voting
Rights, the Certificate Balance of the Class (other than the Class A-1A and
Class A-1B Certificates) shall be deemed to have been reduced by an amount equal
to the amount of Appraisal Reductions allocated for purposes of Section 4.06;
provided further that no such reduction shall apply to the Voting Rights of the
Class PS-1 Certificates. With respect to any Class of Lower-Tier Regular
Interests, the Certificate Balance thereof shall, in any event, be equal to the
Certificate Balance of the Related Certificates.
"Certificate Custodian": Initially, LaSalle National Bank; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the Certificate
Register subject to the following:
(i) except as provided in clause (ii), for the purpose of giving any
consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Servicer, the
Co-Servicer, the Special Servicer, the Trustee, a Manager or a
Borrower or any Person known to a Responsible Officer of the
Certificate Registrar to be an Affiliate of any thereof 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 or take any such action has been obtained;
(ii) for purposes of obtaining the consent of Certificateholders to an
amendment of the Pooling and Servicing Agreement, any Certificates
beneficially owned by the Servicer, the Co-Servicer or the Special
Servicer or an Affiliate thereof shall be deemed to be outstanding,
unless such amendment relates to compensation of the Servicer, the
Co-Servicer or the Special Servicer or benefits the Servicer, the
Co-Servicer or the Special Servicer (in its capacity as such) or any
Affiliate thereof (other than solely in its capacity as
Certificateholder) in any material respect, in which case such
Certificates shall be deemed not to be outstanding;
(iii)except as provided in clause (iv) below, for purposes of obtaining
the consent of Certificateholders to any action proposed to be taken
by the Special Servicer with respect to a Specially Serviced Mortgage
Loan, any Certificates beneficially owned by the Special Servicer or
an Affiliate thereof shall be deemed not to be outstanding;
(iv) for purposes of Section 3.30 (for purposes of determining who the
Directing Holders are), Certificates owned by the Special Servicer or
an Affiliate shall be deemed to be outstanding; and
(v) for purposes of providing or distributing any reports, statements or
other information required or permitted to be provided to a
Certificateholder hereunder, a Certificateholder shall include any
Beneficial Owner, or any Person identified by a Beneficial Owner as a
prospective transferee of a Certificate beneficially owned by such
Beneficial Owner, but only if the Trustee or another party hereto
furnishing such report, statement or information has been provided
with the name of the Beneficial Owner of the related Certificate or
the Person identified as a prospective transferee thereof. For
purposes of the foregoing, the Depositor, the Servicer, the
Co-Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Fiscal Agent or other such Person may rely, without limitation, on a
Depository Participant listing from the Depository or statements
furnished by a Person that on their face appear to be statements from
a Depository Participant to such Person indicating that such Person
beneficially owns Certificates.
"Cinemark Pool B Credit Lease Loan": The Mortgage Loan secured, among other
things, by credit leases having Cinemark USA, Inc. as the tenant and which
Mortgage Loan is identified as Loan Number 38 on the Mortgage Loan Schedule.
"Circuit City Credit Lease Loans": The Mortgage Loans secured, among other
things, by credit leases having Circuit City Stores, Inc. as the tenant, which
Mortgage Loans are identified as Loan Numbers 174, 180, 181, 183, 184, 185, 186,
191, 193 and 194 on the Mortgage Loan Schedule.
"Class": With respect to the Certificates or Lower-Tier Regular Interests,
all of the Certificates or Lower-Tier Regular Interests bearing the same
alphabetical and numerical Class designation.
"Class A-1A Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1A Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class A-1A-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions
payable thereto pursuant to Section 4.01.
"Class A-1B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-1B Pass-Through Rate": A per annum rate equal to 6.2600%.
"Class A-1B-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to 6.4600%.
"Class A-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to the lesser of (i)
6.7400% and (ii) the Weighted Average Net Mortgage Pass-Through Rate.
"Class A-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the lesser of (i)
7.2300% and (ii) the Weighted Average Net Mortgage Pass-Through Rate.
"Class A-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-5 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class A-5 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus .03%.
"Class A-5-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly
distributions payable thereto pursuant to Section 4.01.
"Class B-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class B-1 Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class B-1-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class B-2 Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class B-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class B-3 Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class B-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class B-4 Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class B-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-5 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class B-5 Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class B-5-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-6 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class B-6 Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class B-6-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-6H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class B-6H Pass-Through Rate": A per annum rate equal to 5.8600%.
"Class B-6H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Distribution Amount": With respect to any Distribution Date
and the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class A-5,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-6H
Certificates, an amount equal to the Interest Accrual Amount thereof for such
Distribution Date; with respect to any Distribution Date and the Class PS-1
Certificates, the Interest Accrual Amount thereof for such Distribution Date
minus the aggregate Reduction Interest Distribution Amounts in respect of such
Distribution Date.
"Class Interest Shortfall": On any Distribution Date for any Class of
Certificates, the amount of interest (other than Net Default Interest, Excess
Interest, Reduction Interest Distribution Amounts or Reduction Interest
Shortfalls) required to be distributed to the Holders of such Class pursuant to
Section 4.01(b) on such Distribution Date minus the amount of interest (other
than Net Default Interest, Excess Interest, Reduction Interest Distribution
Amounts or Reduction Interest Shortfalls) actually distributed to such Holders
pursuant to such Section, if any.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class PS-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class PS-1 Notional Balance": With respect to the Class PS-1 Certificates,
(a) with respect to the Distribution Date occurring in October 1998, a notional
principal amount equal to the aggregate Stated Balance of the Mortgage Loans as
of the Cut-off Date, and (b) with respect to any Distribution Date after October
1998, a notional principal amount equal to the aggregate Stated Principal
Balance of the Mortgage Loans as of the first day of the related Interest
Accrual Period.
"Class PS-1 Pass Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus the Weighted Average Pass-Through
Rate.
"Class PS-1 SAT Certificates": The Class PS-1 Certificates which are not
sold to investors and are retained by the Depositor.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto. The Class
R Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class V-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto. The Class
V-1 Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class V-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibits A-16 hereto. The Class
V-2 Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Closing Date": September 30, 1998.
"Co-Lender": With respect to any Split Loan, the holder of any note which
by the terms of the related Co-Lender Agreement is not entitled to direct the
administration of such Split Loan.
"Co-Lender Agreement": With respect to each Split Note and the related
Other Note or Other Notes, the agreement dated as of the date hereof between the
Trustee and the holder of the related Other Note or Other Notes, regarding the
administration of the Split Loans and the allocation of all amounts received by
the holders of the notes comprising any portion thereof.
"Co-Lender Split Note": Any Split Note as to which the related Co-Lender
Agreement designates the Trustee as the "Co-Lender" (including a Lead Lender
Split Note as to which the Trustee subsequently becomes "Co-Lender" in
accordance with the terms of the related Co-Lender Agreement).
"Co-Servicer": AMRESCO Services, L.P., a Delaware limited partnership, or
any successor Co-Servicer appointed as herein provided.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
any successor statute thereto, and any temporary or final regulations of the
United States Department of the Treasury promulgated pursuant thereto.
"Collateral Account": As defined in Section 3.30(e). The Collateral Account
shall be maintained as an Eligible Account.
"Collection Account": The trust account or accounts created and maintained
by the Servicer or the Co-Servicer pursuant to Section 3.05(a), which shall be
entitled "The Capital Company of America Client Services LLC, in trust for
LaSalle National Bank, as Trustee, in trust for Holders of CAPCO America
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-D7, Collection Account" or "AMRESCO Services, L.P., in trust for
LaSalle National Bank, as Trustee, in trust for Holders of CAPCO America
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-D7, Collection Account," respectively, and which must be an Eligible
Account.
"Collection Period": With respect to a Distribution Date and each Mortgage
Loan, the period beginning on the day after the last day of the preceding
Collection Period and ending at the close of business on the 11th day in the
month in which such Distribution Date occurs (or, if such day is not a Business
Day, on the following Business Day).
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially containing
the content described in Exhibit M-1 attached hereto, setting forth, among other
things, the occupancy, revenue, net operating income or net cash flow, as
applicable, and Debt Service Coverage Ratio for each Mortgage Loan as of the
date of the latest financial information available immediately preceding the
preparation of such report for each of the following periods (to the extent such
information is available): (i) the most current available year-to-date, (ii) the
most recent twelve months, (iii) the previous two full fiscal years, and (iv)
the "base year" (representing the original analysis of information used as of
the Cut-off Date); provided, however, that Debt Service Coverage Ratio shall not
be calculated for any Mortgaged Property for which twelve months of operating
information is not available (including for purposes of clause (i)). For the
purposes of the 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 Mortgage Loan Sellers.
"Corporate Trust Office": The principal office of the Trustee located at
135 South LaSalle Street, Suite 1625, Chicago, Illinois 60674-4107, Attention:
Asset-Backed Securities Trust Services Group - CCA 1998-D7 or the principal
trust office of any successor trustee qualified and appointed pursuant to
Section 8.08.
"Credit Lease Loans": The Circuit City Credit Lease Loans, the ACCOR Credit
Lease Loans, the Cinemark Pool B Credit Lease Loan and the Mortgage Loans
identified as Loan Numbers 12, 18, 19 and 102 on the Mortgage Loan Schedule.
"Cross-Indemnified Party": As defined in Section 8.05(c).
"Cross-Indemnifying Party": As defined in Section 8.05(c).
"Crossover Date": means the Distribution Date on which the Certificate
Balance of each Class of Certificates other than the Class A-1A and Class A-1B
Certificates have been reduced to zero.
"CSSA Reports": Data files which contain the information substantially in
the forms of the CSSA standard reporting package attached as Exhibits M-9, M-10
and M-11, as the same may be modified from time to time.
"Custodial Agreement": The Custodial Agreement, if any, from time to time
in effect between the Custodian named therein and the Trustee, substantially in
the form of Exhibit F hereto, as the same may be amended or modified from time
to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and, unless
the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee, the Servicer or the Co-Servicer or
any Affiliate of the Trustee, the Servicer or the Co-Servicer, but may not be
the Depositor or any Affiliate thereof.
"Cut-off Date": September 11, 1998.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan as of any
date of determination and for any period, the ratio calculated by dividing the
net operating income or net cash flow, as applicable, of the related Mortgaged
Property or Mortgaged Properties, as the case may be, for the most recently
ended one-year period for which data is available from the related Borrower,
before payment of any scheduled payments of principal and interest on such
Mortgage Loan but after funding of required reserves and "normalized" by the
Servicer pursuant to Section 3.13, by the annual debt service required by such
Mortgage Loan. Annual debt service shall be calculated by multiplying the
Monthly Payment in effect on such date of determination for such Mortgage Loan
by 12. For purposes of calculating Debt Service Coverage Ratio for any of the
Split Loans, all pari passu notes secured by the related Mortgaged Property are
included (to the extent the Servicer or the Co-Servicer, as applicable, has
received such information).
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage 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.
The Default Interest shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Default Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(d), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of CAPCO America Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D7, Default Interest
Distribution Account" and which must be an Eligible Account. The Default
Interest Distribution Account shall not be an asset of the Lower-Tier REMIC or
the Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment, as
such rate is set forth on the Mortgage Loan Schedule.
"Delinquency": Any failure of a Borrower to make a scheduled payment on a
Due Date.
"Delinquency Reduction Amount": In connection with a Delinquency, an amount
equal to the scheduled payment (or portion thereof) due on the related Due Date
(adjusted to the applicable Net Mortgage Pass-Through Rate with respect to the
interest portion) and not received from a Borrower under any Mortgage Loan.
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit M-2 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, were delinquent one
Collection Period, delinquent two Collection Periods, delinquent three
Collection Periods or more, current but specially serviced, or were in
foreclosure but were not REO Property.
"Denomination": As defined in Section 5.01(a).
"Deposit": As defined in Section 3.30(e).
"Depositor": CAPCO America Securitization Corporation, a Delaware
corporation, and its successors and assigns.
"Depositor/NSI Transfer": As defined in Section 2.03(j)(xi).
"Depositor/Trustee Transfer": As defined in Section 2.03(j)(xi).
"Depository": The Depository Trust Company or a successor appointed by the
Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Determination Date": The 11th day of each month or, if such day is not a
Business Day, the next succeeding Business Day.
"Directing Holders": As defined in Section 3.30(d).
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space for occupancy only within the
meaning of Treasury Regulations Section 1.512(b)-1(c)(5), 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, or any use of
such REO Property in a trade or business conducted by the Trust Fund, or the
performance of any construction work on the REO Property other than through an
Independent Contractor; provided, however, that the Special Servicer, on behalf
of the Trust Fund, shall not be considered to Directly Operate an REO Property
solely because the Special Servicer, on behalf of the Trust Fund, establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property or takes other actions consistent with Treasury
Regulations Section 1.856-4(b)(5)(ii) of the regulations of the United States
Department of the Treasury.
"Discount Rate": With respect to any Class of Certificates, the rate
determined by the Trustee, in its good faith, to be the rate (interpolated and
rounded to the nearest one-thousandth of a percent, if necessary) in the
secondary market for United States Treasury securities with a maturity equal to
the then computed weighted average life (or in the case of the Class PS-1
Certificates, the weighted average life of the interest payments) of such class
(rounded to the nearest month), without taking into account the related
prepayment of principal.
"Disqualified Non-U.S. Person": With respect to a Class R or Class LR
Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
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 a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R or Class LR Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural electric
and telephone cooperatives described in Code Section 1381(a)(2), or (e) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel to the effect that any Transfer to such Person may cause the Upper-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of CAPCO America Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D7, Distribution Account" and
which must be an Eligible Account.
"Distribution Date": The fourth Business Day following the 11th day of each
month; provided, that if the 11th day of any month is not a Business Day, the
Distribution Date will be the fifth Business Day following the 11th day of such
month. The first Distribution Date will be October 16, 1998.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": Except with respect to the ACCOR Credit Lease Loans, with
respect to any Distribution Date and/or any Mortgage Loan, as the case may be,
the 11th day of the month in which such Distribution Date occurs (or in the case
of certain of the Mortgage Loans, if the 11th day is not a Business Day, as
defined in the related Loan Documents, either the next Business Day or the first
preceding Business Day). With respect to the ACCOR Credit Lease Loans, the Due
Date is the 1st day of the month (or, if the 1st day is not a Business Day, as
defined in the related Loan Documents, the next Business Day).
"Early Termination Notice Date": Any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Eastland Mall Retail Loan": The Mortgage Loan secured by a mortgage on the
Mortgaged Property known as Eastland Mall and identified as Loan Number 6 on the
Mortgage Loan Schedule.
"Eligible Account": Any of (i) (A) an account or accounts maintained with a
depository institution or trust company the short term unsecured debt
obligations or commercial paper of which are rated at least P-1 by Moody's and
F-1+ by Fitch in the case of accounts in which funds are held for 30 days or
less (or, in the case of accounts in which funds are held for more than 30 days,
the long term unsecured debt obligations of which are rated at least "AA" by
Fitch and "Aa2" by Moody's) or (B) as to which the Trustee has received written
confirmation from each of the Rating Agencies that holding funds in such account
would not cause any Rating Agency to qualify, withdraw or downgrade any of its
ratings on the Certificates; (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity which, in the case of a state chartered
depository institution or trust company is subject to regulations substantially
similar to 12 C.F.R. ss.9.10(b), having in either case a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal and state authority; or (iii) any other account that, as evidenced by a
written confirmation from each Rating Agency would not, in and of itself, cause
a downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates, which may be an account maintained with the Trustee. Eligible
Accounts may bear interest. Accounts held at LaSalle National Bank shall be
deemed to be Eligible Accounts, unless the ratings of its long term unsecured
debt obligations or short term unsecured debt obligations are downgraded by any
Rating Agency.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A or (ii) an Institutional Accredited Investor.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the Mortgage Loan Seller in
connection with the related Mortgage.
"Equity Loans": The Cinemark Pool B Credit Lease Loan, the Eastland Mall
Retail Loan and the Lenox Twin Pines Healthcare Loan, collectively.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account may be
a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Servicer pursuant
to the related Mortgage, Cash Collateral Agreement, Lock-Box Agreement or Loan
Agreement for the account of such Borrower for application toward the payment of
taxes, insurance premiums, assessments and similar items in respect of the
related Mortgaged Property.
"Euroclear": Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special Servicer Event
of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans indicated on
the Mortgage Loan Schedule as having a Revised Mortgage Rate, interest accrued
on such Mortgage Loan allocable to the Excess Rate. The Excess Interest shall
not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(e), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of CAPCO America Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D7, Excess Interest
Distribution Account" and which must be an Eligible Account. The Excess Interest
Distribution Account shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated on the
Mortgage Loan Schedule as having a Revised Mortgage Rate, the excess of (i) the
applicable Revised Mortgage Rate over (ii) the applicable Mortgage Rate, each as
set forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as it may be amended
from time to time.
"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, NOI Adjustment Worksheet, 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.
"Fair Market Value": As defined in Section 3.30(e).
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or Mortgage Loan subject to repurchase by the Depositor or the
Mortgage Loan Seller pursuant to Sections 2.03(d) or 2.03(e), the recovery of
all Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and
other payments or recoveries (including proceeds of the final sale of any REO
Property) which the Servicer or the Co-Servicer, as applicable (or in the case
of a Specially Serviced Mortgage Loan, the Special Servicer), in its reasonable
judgment as evidenced by a certificate of a Servicing Officer delivered to the
Trustee and the Custodian (and the Servicer, if the Certificate is from the
Special Servicer), expects to be finally recoverable. The Servicer or the
Co-Servicer, as applicable, shall maintain records, prepared by a Servicing
Officer, of each Final Recovery Determination until the earlier of (i) its
termination as Servicer or Co-Servicer hereunder and the transfer of such
records to a successor servicer and (ii) five years following the termination of
the Trust Fund.
"Financial Market Publisher": Bloomberg, L.P., Intex Solutions, Inc.,
Charter Research Corporation, Wall Street Analytics, Inc., and the Trepp Group.
"Financing Trust": Nomura Financing Trust ST I, a Delaware business trust.
"Financing Trust Mortgage Loan Purchase and Sale Agreement": The Mortgage
Loan Purchase and Sale Agreement dated as of the Cut-off Date, by and between
the Depositor and the Financing Trust, a copy of which is attached hereto as
Exhibit H-2.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation in
its capacity as fiscal agent of the Trustee, or its successor in interest, or
any successor fiscal agent appointed as herein provided.
"Fitch": Fitch IBCA, Inc., or its successor in interest.
"Fixed Voting Rights Percentage": As defined in the definition of "Voting
Rights."
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or such
successor form as the Commission may specify from time to time.
"Global Certificates": The Class A-1A, Class A-1B, Class PS-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Hiawassee Oaks Apartments Loan": The Mortgage Loan known as Mortgage Loan
Number 114 on the Mortgage Loan Schedule.
"Historical Loan Modification Report": A report substantially containing
the content described in Exhibit M-3 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, have been modified
pursuant to this Agreement (i) during the related Collection Period and (ii)
since the Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing the
content described in Exhibit M-4 attached hereto, setting forth, among other
things, as of the close of business on the Due Date immediately preceding the
preparation of such report, (i) the aggregate amount of Liquidation Proceeds and
Liquidation Expenses, both for the current period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": With respect to any Certificate, a Certificateholder; and with
respect to any Lower-Tier Regular Interest, the Trustee.
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Servicer,
the Co-Servicer, the Special Servicer, any Borrower or Manager or any Affiliate
thereof, and (ii) is not connected with any such Person thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"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 tests 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 or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except none of the Servicer, the Co-Servicer or the Special
Servicer shall 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) addressed to the
Servicer, the Co-Servicer and the Trustee has been delivered to the Trustee to
that effect) or (ii) any other Person (including the Servicer, the Co-Servicer
and the Special Servicer) if the Servicer or Co-Servicer, on behalf of itself
and the Trustee, has received 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 (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act, or an
entity in which all the equity owners meet such requirements.
"Instructions": As defined in Section 3.30(d).
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan (including
any amounts paid by the Servicer or Co-Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and any
Class of Certificates (other than the Class PS-1, Class V-1, Class V-2, Class R
and Class LR Certificates), an amount equal to interest for the related Interest
Accrual Period at the Pass-Through Rate for such Class on the related
Certificate Balance (provided, that for interest accrual purposes any
distributions in reduction of Certificate Balance or reductions in Certificate
Balance as a result of allocations of Realized Losses on the Distribution Date
occurring in an Interest Accrual Period shall be deemed to have been made on the
first day of such Interest Accrual Period). The "Interest Accrual Amount" with
respect to any Distribution Date and the Class PS-1 Certificates shall be equal
to interest for the related Interest Accrual Period at the Pass-Through Rate for
such Class for such Interest Accrual Period on the Class PS-1 Notional Balance
(provided, that any reductions in the Class PS-1 Notional Balance as a result of
principal distributions on Mortgage Loans or Realized Losses with respect to
Mortgage Loans distributable or allocable on the Lower-Tier Regular Interests on
the Distribution Date occurring in an Interest Accrual Period shall be deemed to
have occurred on the first day of such Interest Accrual Period). Calculations of
interest due in respect of the Certificates shall be made on the basis of a
360-day year consisting of twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date, the
period which commences on the eleventh day of the month preceding the month in
which such Distribution Date occurs and ends on the tenth day of the month in
which such Distribution Date occurs. Interest for each Interest Accrual Period
is calculated based on a 360-day year consisting of twelve 30-day months.
"Interest Reserve Account": The trust account created and maintained by the
Trustee pursuant to Section 3.27, which shall be entitled "LaSalle National
Bank, as Trustee, in trust for Holders of CAPCO America Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-D7,
Interest Reserve Account" and which must be an Eligible Account.
"Interest Reserve Loans": Any Mortgage Loan which has a Mortgage Rate less
than or equal to 7.81%.
"Interest Shortfall": With respect to any Distribution Date for any Class
of Offered Certificates, any shortfall in the amount of interest required to be
distributed to such Class on such Distribution Date.
"Interested Person": As of any date of determination, the Depositor, the
Servicer, Special Servicer, the Trustee, the Fiscal Agent, any Borrower, any
manager of a Mortgaged Property, any Independent Contractor engaged by the
Special Servicer pursuant to Section 3.17, or any Person known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section 5.02(c)(i)(A).
"IRS": The Internal Revenue Service, or any successor thereto.
"Lead Lender": With respect to each Split Loan, the holder of the note
which by the terms of the related Co-Lender Agreement is entitled to direct the
administration of the Split Loan and has the sole authority to exercise and
enforce the lender's rights under the Loan Documents relating to such Split
Loan.
"Lead Lender Split Note": Any Split Note as to which the related Co-Lender
Agreement designates the Trustee as the "Lead Lender" (including a Co-Lender
Split Note as to which the Trustee subsequently becomes the "Lead Lender" in
accordance with the terms of the related Co-Lender Agreement).
"Lenox Twin Pines Healthcare Loan": The Mortgage Loan identified as Loan
Number 103 on the Mortgage Loan Schedule.
"Liquidation Expenses": Expenses incurred by the Servicer, the Co-Servicer,
the Special Servicer, the Trustee or the Fiscal Agent in connection with the
liquidation of any Mortgage Loan or property acquired in respect thereof
(including, without limitation, legal fees and expenses, committee or referee
fees, and, if applicable, brokerage commissions, and conveyance taxes) and any
Property Protection Expenses incurred with respect to such Mortgage Loan or such
property including interest thereon at the Advance Rate not previously
reimbursed from collections or other proceeds therefrom.
"Liquidation Proceeds": The amount (other than Insurance Proceeds) received
in connection with (i) the taking of a Mortgaged Property (or portion thereof)
by exercise of the power of eminent domain or condemnation, (ii) the liquidation
of a Specially Serviced Mortgage Loan through a trustee's sale, foreclosure sale
or otherwise or (iii) a sale of a Mortgage Loan or an REO Property in accordance
with Section 3.18 or Section 9.01.
"Loan Agreement": 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.
"Loan Documents": With respect to any Mortgage Loan, the documents executed
or delivered in connection with the origination of such Mortgage Loan or
subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan number by which
such Mortgage Loan was identified on the books and records of the Depositor or
any sub-servicer for the Depositor, as set forth in the Mortgage Loan Schedule.
"Lock-Box Account": With respect to any Mortgaged Property, if applicable,
any account created pursuant to any documents relating to a Mortgage 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 Mortgage Loan and Section 3.07, which Person shall be taxed on
all reinvestment income or gain thereon. The Servicer or Co-Servicer, as
applicable, shall be permitted to make withdrawals therefrom for deposit into
the related Cash Collateral Accounts in accordance with the terms of the related
Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage 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, if any, may have been
established.
"Lock-out Period": With respect to any Mortgage Loan, the period of time
specified in the related Loan Documents during which voluntary prepayments by
the related Borrower are prohibited.
"Lower-Tier Regular Interests": The Class A-1A-L, Class A-1B-L, Class
A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class B-1-L, Class B-2-L, Class
B-3-L, Class B-4-L, Class B-5-L, Class B-6-L and Class B-6H-L Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest, Excess Interest
and Post-Lock Out Return of Premium Amounts), collections thereon, any REO
Property acquired in respect thereof and amounts held from time to time in the
Collection Account and the Distribution Account.
"Luxembourg Paying Agent": Banque Generale du Luxembourg, a Luxembourg
banking corporation, or its successor in interest.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage 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 Mortgage Loan, any property manager for the
related Mortgaged Properties.
"Maturity Date": With respect to each Mortgage Loan, the Maturity Date as
set forth on the Mortgage Loan Schedule.
"Monte Sano Apts. Loan": The Mortgage Loan known as Mortgage Loan Number 21
on the Mortgage Loan Schedule.
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal, if
any, and interest at the Mortgage Rate which is payable by the related Borrower
on such Due Date under the related Note. With respect to an REO Mortgage Loan,
the monthly payment that would otherwise have been payable on the related Due
Date had the related Note not been discharged, determined as set forth in the
preceding sentence and on the assumption that all other amounts, if any, due
thereunder are paid when due.
"Moody's": Moody's Investors Service, Inc., or its successor in interest.
"Morgantown Mall Loan": The Mortgage Loan known as Mortgage Loan Number 3
on the Mortgage Loan Schedule.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage documents
listed in Section 2.01(i) through (xvi) pertaining to such particular Mortgage
Loan and any additional documents required to be added to such Mortgage File
pursuant to the express provisions of this Agreement.
"Mortgage 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,
the mortgage loans originally so transferred, assigned and held being identified
on the Mortgage Loan Schedule as of the Cut-off Date. Such term shall include
any REO Mortgage Loan, Specially Serviced Mortgage Loan or any Mortgage Loan
that has been defeased in whole or in part. Nothing herein shall be deemed to
override the provisions of the Co-Lender Agreements.
"Mortgage Loan Purchase and Sale Agreement": Either of the CCA Mortgage
Loan Purchase and Sale Agreement or the Financing Trust Mortgage Loan Purchase
and Sale Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the Trust
Fund as of the Closing Date being attached hereto as Exhibit B, which list shall
set forth the following information with respect to each Mortgage Loan:
(a) the Loan Number;
(b) the property name, city and state where each related Mortgaged
Property is located;
(c) the annual debt service;
(d) the Mortgage Rate;
(e) the Revised Mortgage Rate, if applicable;
(f) the Maturity Date;
(g) the Stated Principal Balance as of the Cut-off Date and, as
applicable, the allocation of such balance to each related Mortgaged
Property;
(h) the Originator of such Mortgage Loan; and
(i) whether the Mortgage Loan is an Actual/360 Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (c) and (g) above for all of the Mortgage Loans. The
Mortgage Loan Schedule may also set forth, for selected Mortgage Loans, the net
operating income or debt service coverage ratio. The Mortgage Loan Schedule may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Sellers": CCA and the Financing Trust.
"Mortgage Pass-Through Rate": With respect to the Mortgage Loans that
provide for calculations of interest based on twelve months of 30 days each, the
Mortgage Pass-Through Rate for any Interest Accrual Period is equal to the
Mortgage Rate thereof. The Mortgage Pass-Through Rate with respect to the
Actual/360 Mortgage Loans for any Interest Accrual Period, is equal to the
Mortgage Rate thereof multiplied by a fraction the numerator of which is the
actual number of days in such Interest Accrual Period and the denominator of
which is 30. The Mortgage Pass-Through Rate with respect to the Interest Reserve
Loans for any Distribution Date (a) relating to any Interest Accrual Period
commencing in any January, February, April, June, September and November and in
any December occurring in a year immediately preceding any year which is not a
leap year, is the Mortgage Rate thereof, and (b) relating to any Interest
Accrual Period commencing in any March, May, July, August and October and in any
December occurring in a year immediately preceding a year which is a leap year,
is equal to the Mortgage Rate thereof multiplied by a fraction the numerator of
which is the actual number of days in such Interest Accrual Period and the
denominator of which is 30. Notwithstanding the foregoing, the Mortgage
Pass-Through Rate with respect to each Mortgage Loan for the first Interest
Accrual Period is the Mortgage Rate thereof.
"Mortgage Rate": With respect to each Mortgage Loan and any Interest
Accrual Period, the annual rate, not including any Excess Rate, at which
interest accrues on such Mortgage Loan during such period (in the absence of a
default), as set forth on the Mortgage Loan Schedule. The Mortgage Rate for
purposes of calculating the Weighted Average Net Mortgage Pass-Through Rate
shall be the Mortgage Rate of such Mortgage 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 a reduction in
interest or principal due to a modification pursuant to Section 3.30 hereof.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple estate, and, with respect
to certain Mortgage Loans, a leasehold estate or both a leasehold estate and a
fee simple estate, or a leasehold estate in a portion of the property and a fee
simple estate in the remainder, in a parcel of land improved by a commercial
property, together with any personal property, fixtures, leases and other
property or rights pertaining thereto.
"Net Default Interest": As defined in Section 3.05(d).
"Net Income": With respect to any REO Property, all income received in
connection with such REO Property, less any operating expenses, including, but
not limited to, utilities, real estate taxes, property management fees,
insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the Borrower in accordance with the express requirements of the
Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with respect
to any Mortgage Loan net of the amount of (i) Liquidation Expenses incurred with
respect thereto and, (ii) with respect to proceeds received in connection with
the taking of a Mortgaged Property (or portion thereof) by the power of eminent
domain in condemnation, amounts required to be applied to the restoration or
repair of the related Mortgaged Property.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Pass-Through Rate
for such Mortgage Loan, minus, the Servicing Fee Rate.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds with
respect to such REO Property net of any insurance premiums, taxes, assessments
and other costs and expenses permitted to be paid therefrom pursuant to Section
3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the Trust
Fund, including any lease renewed or extended on behalf of the Trust Fund if the
Trust Fund has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Servicer or the
Special Servicer, as the case may be, substantially containing the content
described in Exhibit M-8 attached hereto, presenting the computations made in
accordance with the methodology described in said Exhibit M-8 to "normalize" the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement, sent to the Trustee with each annual
operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": Any portion of an Advance proposed to be made or
previously made which has not been previously reimbursed to the Servicer, the
Co-Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, and which, in the good faith business judgment of the Servicer, the
Co-Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, will not or, in the case of a proposed Advance, would not be
ultimately recoverable from late payments, Insurance Proceeds, Liquidation
Proceeds and other collections on or in respect of the related Mortgage Loan.
The judgment or determination by the Servicer (or, with respect to each
Co-Lender Split Note, the Other Servicer), the Co-Servicer, the Special
Servicer, the Trustee or the Fiscal Agent that it has made a Nonrecoverable
Advance or that any proposed Advance, if made, would constitute a Nonrecoverable
Advance shall be evidenced in the case of the Servicer, Co-Servicer or Special
Servicer, by a certificate of a Servicing Officer delivered to the Trustee, the
Fiscal Agent, the Depositor and, in the case of the Special Servicer, to the
Servicer and the Co-Servicer, and in the case of the Trustee or the Fiscal
Agent, by a certificate of a Responsible Officer of the Trustee or Fiscal Agent,
as applicable, delivered to the Depositor (and the Trustee if the Certificate is
from the Fiscal Agent), which in each case sets forth such judgment or
determination and the procedures and considerations of the Servicer, the
Co-Servicer, Special Servicer, Trustee or Fiscal Agent, as applicable, forming
the basis of such determination (including, but not limited to, information
selected by the Person making such judgment or determination in its good faith
discretion, such as related income and expense statements, rent rolls, occupancy
status, property inspections, Servicer, Co-Servicer, Special Servicer, Trustee
or Fiscal Agent inquiries, third party engineering and environmental reports,
and, in any event, an appraisal conducted by an MAI appraiser or any Updated
Appraisal thereof conducted within the past 12 months; copies of such documents
to be included with the certificate of a Servicing Officer or a Responsible
Officer). Any determination of non-recoverability made by the Servicer or
Co-Servicer may be made without regard to any value determination made by the
Special Servicer other than pursuant to an Updated Appraisal. Notwithstanding
the above, the Trustee and the Fiscal Agent shall be entitled to rely upon any
determination by the Servicer, the Co-Servicer or the Special Servicer that any
Advance previously made is a Nonrecoverable Advance or that any proposed Advance
would, if made, constitute a Nonrecoverable Advance (and with respect to a
proposed P&I Advance, the Trustee and the Fiscal Agent, as applicable, shall
rely on the Servicer's or the Co-Servicer's determination that the Advance would
be a Nonrecoverable Advance if the Trustee or Fiscal Agent, as applicable,
determines that it does not have sufficient time to make such a determination).
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of a Borrower under such Mortgage Loan, including any amendments or
modifications, or any renewal or substitution notes, as of such date.
"Notice and Acknowledgment": As defined in Section 3.33(b).
"Notice of Termination": Any of the notices given to the Trustee by the
Servicer or any Holder of a Class LR Certificate pursuant to Section 9.01(c).
"NSI": As defined in Section 2.03(j)(ii).
"NSI Certificates": As defined in Section 2.03(j)(xi).
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President (however
denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer or
employee designated as a Servicing Officer customarily performing functions
similar to those performed by any of the above designated officers and also with
respect to a particular matter, any other officer or employee designated as a
Servicing Officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject, or an authorized
officer of the Depositor, and delivered to the Depositor, the Trustee, the
Servicer or Co-Servicer, as the case may be.
"Operating Advisor": AMRESCO Services, L.P., a Delaware limited
partnership, or any successor Operating Advisor appointed as herein provided.
"Operating Advisor Compensation": With respect to any Distribution Date,
the related Operating Advisor Fee and any other fees, charges or other amounts
payable to the Operating Advisor pursuant to this Agreement.
"Operating Advisor Fee": With respect to each Affiliated Mortgage Loan and
for any Distribution Date, an amount per Interest Accrual Period equal to the
product of (i) one-twelfth of the Operating Advisor Fee Rate and (ii) the Stated
Principal Balance of such Affiliated Mortgage Loan as of the Due Date (after
giving effect to all payments of principal on such Affiliated Mortgage Loan on
such Due Date) in the month preceding the month in which such Distribution Date
occurs.
"Operating Advisor Fee Rate": A rate equal to that portion of the Servicing
Fee Rate payable to the Servicer.
"Operating Statement Analysis": With respect to each Mortgage Loan and REO
Property, a report substantially containing the content described in Exhibit M-7
attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Servicer
or Co-Servicer, as the case may be, acceptable to the Trustee, except that any
opinion of counsel relating to (a) qualification of the Upper-Tier REMIC or
Lower-Tier REMIC as a REMIC or the imposition of tax under the REMIC Provisions
on any income or property of either REMIC, (b) compliance with the REMIC
Provisions (including application of the definition of "Independent Contractor")
or (c) a resignation of the Servicer or Co-Servicer pursuant to Section 6.04,
must be an opinion of counsel who is Independent of the Depositor and the
Servicer or Co-Servicer.
"Originator": Either of (i) CCA or (ii) Bloomfield Acceptance Company, LLC.
"Other Mortgage Loan": As defined in Section 2.01(b).
"Other Note": With respect to each Split Loan, each note evidencing the
indebtedness under an Other Mortgage Loan.
"Other Servicer": With respect to each Other Note, the servicer of such
Other Note.
"Other Special Servicer": With respect to each Other Note, the special
servicer of such Other Note.
"Other Trust Fund": As defined in Section 2.01(b).
"Other Trustee": As defined in Section 4.01(b).
"Ownership Interest": Any record or beneficial interest in a Class R or
Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the Servicer,
the Co-Servicer, the Trustee or the Fiscal Agent pursuant to Section 4.06. Each
reference to the payment or reimbursement of a P&I Advance shall be deemed to
include, whether or not specifically referred to and without duplication,
payment or reimbursement of interest thereon at the Advance Rate from and
including the date of the making of such P&I Advance through and including the
date of payment or reimbursement.
"Pass-Through Rate": With respect to each Class of Certificates (other than
the Class V-1, Class V-2, Class R and Class LR Certificates), the Pass-Through
Rate for such Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-1A Class A-1A Pass-Through Rate
Class A-1B Class A-1B Pass-Through Rate
Class PS-1 Class PS-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class A-3 Class A-3 Pass-Through Rate
Class A-4 Class A-4 Pass-Through Rate
Class A-5 Class A-5 Pass-Through Rate
Class B-1 Class B-1 Pass-Through Rate
Class B-2 Class B-2 Pass-Through Rate
Class B-3 Class B-3 Pass-Through Rate
Class B-4 Class B-4 Pass-Through Rate
Class B-5 Class B-5 Pass-Through Rate
Class B-6 Class B-6 Pass-Through Rate
Class B-6H Class B-6H Pass-Through Rate
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"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 Certificate (except the Class V-1, Class V-2,
Class R and Class LR Certificates), the percentage interest is equal to the
initial denomination of such Certificate divided by the initial Certificate
Balance or Notional Balance, as applicable, of such Class of Certificates. With
respect to any Class V-1, Class V-2, Class R or Class LR Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn,
regardless of whether issued by the Depositor, the Servicer, the Co-Servicer,
the Trustee or any of their respective Affiliates and having at all times the
required ratings, if any, provided for in this definition, unless each Rating
Agency shall have confirmed in writing to the Servicer that a lower rating would
not, in and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as to payment
of principal and interest by, the United States or any agency
or instrumentality thereof provided such obligations are backed
by the full faith and credit of the United States of America
including, without limitation, obligations of: the U.S.
Treasury (all direct or fully guaranteed obligations), the
Farmers Home Administration (certificates of beneficial
ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed
Title XI financing), the Small Business Administration
(guaranteed participation certificates and guaranteed pool
certificates), the U.S. Department of Housing and Urban
Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds);
provided, however, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal
due at maturity that cannot vary or change, (B) if such
investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index,
and (C) such investments must not be subject to liquidation
prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations),
the Farm Credit System (consolidated systemwide bonds and
notes), the Federal Home Loan Banks (consolidated debt
obligations), the Federal National Mortgage Association (debt
obligations), the Student Loan Marketing Association (debt
obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase
agreements, with maturities of not more than 365 days, of any
bank, the short term obligations of which are rated in the
highest short term rating category by each Rating Agency (or,
if not rated by Moody's or Fitch, otherwise acceptable to
Moody's or Fitch, respectively, as confirmed in writing that
such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates); provided, however, that
the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if such investments have a variable
rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (C) such investments must
not be subject to liquidation prior to their maturity;
(v) insured deposits in, or certificates of deposit of, or bankers'
acceptances issued by, any bank or trust company, savings and
loan association or savings bank, the short term obligations of
which are rated in the highest short term rating category by
each Rating Agency (or, if not rated by Moody's or Fitch,
otherwise acceptable to Moody's or Fitch, respectively, as
confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates);
provided, however, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal
due at maturity that cannot vary or change, (B) if such
investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index,
and (C) such investments must not be subject to liquidation
prior to their maturity;
(vi) debt obligations with maturities of not more than 365 days
rated by each Rating Agency (or, if not rated by Moody's or
Fitch, otherwise acceptable to Moody's or Fitch, respectively,
as confirmed in writing that such investment would not, in and
of itself, result in a downgrade, qualification or withdrawal
of the then-current ratings assigned to the Certificates) in
its highest long-term unsecured rating category; provided,
however, that the investments described in this clause must (A)
have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if such investments have a
variable rate of interest, such interest rate must be tied to a
single interest rate index plus a fixed spread (if any) and
must move proportionately with that index, and (C) such
investments must not be subject to liquidation prior to their
maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date of
issuance thereof) with maturities of not more than 365 days and
that is rated by each Rating Agency (or, if not rated by
Moody's or Fitch, otherwise acceptable to Moody's or Fitch,
respectively, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings
assigned to the Certificates) in its highest short-term
unsecured debt rating; provided, however, that the investments
described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change,
(B) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus
a fixed spread (if any) and must move proportionately with that
index, and (C) such investments must not be subject to
liquidation prior to their maturity;
(viii) the Federated Prime Obligation Money Market Fund (the "Fund")
so long as the Fund is rated by each Rating Agency in its
highest short-term unsecured debt ratings category (or, if not
rated by Moody's or Fitch, otherwise acceptable to Moody's or
Fitch, respectively, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings
assigned to the Certificates); and
(ix) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment,
provided that each Rating Agency has confirmed in writing to
the Servicer, Co-Servicer, Special Servicer or Trustee, as
applicable, that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates;
provided, however, that, with respect to clause (ix) above, in the judgment of
the Servicer, such instrument qualifies as a "cash flow investment" pursuant to
Code Section 860G(a)(6) earning a passive return in the nature of interest and
provided, further that no instrument or security shall be a Permitted Investment
if (i) such instrument or security evidences a right to receive only interest
payments or (ii) the right to receive principal and interest payments derived
from the underlying investment provides a yield to maturity in excess of 120% of
the yield to maturity at par of such underlying investment.
"Permitted Transferee": With respect to a Class R or Class LR Certificate,
any Person or agent thereof that is a Qualified Institutional Buyer, an
Affiliated Person or an Institutional Accredited Investor, other than (a) a
Disqualified Organization, (b) any other Person so designated by the Certificate
Registrar based upon an Opinion of Counsel (provided at the expense of such
Person or the Person requesting the Transfer) to the effect that the Transfer of
an Ownership Interest in any Class R or Class LR Certificate to such Person may
cause the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at
any time that the Certificates are outstanding, (c) a Person that is a
Disqualified Non-U.S. Person and (d) a Plan or any Person investing the assets
of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agents": Nomura Securities International, Inc., Morgan Stanley &
Co. Incorporated, and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
"Plan": As defined in Section 5.02(k).
"Post-Lock Out Return of Premium Amount": Any Return of Premium Amount paid
on a Mortgage Loan in respect of an Unscheduled Payment on such Mortgage Loan
received after the expiration of the related Lock-out Period.
"Post-Lock Out Return of Premium Distribution Account": The trust account
or accounts created and maintained as a separate trust account or accounts by
the Trustee pursuant to Section 3.05(g), which shall be entitled "LaSalle
National Bank, as Trustee, in trust for Holders of CAPCO America Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-D7,
Post-Lock Out Return of Premium Distribution Account" and which must be an
Eligible Account. The Post-Lock Out Return of Premium Distribution Account shall
not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Pre-Lock Out Return of Premium Amount": Any Return of Premium Amount paid
on a Mortgage Loan in respect of an Unscheduled Payment on such Mortgage Loan
received prior to the expiration of the related Lock-out Period.
"Premium": With respect to each Premium Loan, the amount by which the face
of the related Note is less than the amount advanced to the Borrower.
"Premium Loans": The Mortgage Loans identified as Loan Numbers 1, 2, 4, 6,
8, 10, 14, 15, 16, 20, 21, 22, 25, 28, 30, 34, 36, 39, 40, 41, 44, 49, 51, 53,
55, 57, 58, 59, 64, 66, 67, 73, 78, 79, 83, 86, 92, 101, 105, 122, 143, 163, 179
and 188 on the Mortgage Loan Schedule.
"Prepayment Assumption": The assumption that each ARD Loan prepays on its
Anticipated Repayment Date and that each other Mortgage Loan does not prepay
prior to its respective Maturity Date.
"Prepayment Interest Shortfall": With respect to any Distribution Date, the
amount of any shortfall in collections of interest (adjusted to the applicable
Net Mortgage Pass-Through Rate plus the Trustee Fee) resulting from a Principal
Prepayment on such Mortgage Loan during the related Collection Period and prior
to the related Due Date other than Prepayment Interest Shortfalls relating to
any Specially Serviced Mortgage Loan.
"Prepayment Premium": Payments received on a Mortgage Loan as the result of
a Principal Prepayment thereon, not otherwise due thereon in respect of
principal or interest, including any Pre-Lock Out Return of Premium Amount but
excluding any Repurchase Return of Premium Amount and excluding any Post-Lock
Out Return of Premium Amount.
"Prime Retail Pool Loan": The Mortgage Loan identified as Loan Number 1 on
the Mortgage Loan Schedule.
"Principal Distribution Amount": For any Distribution Date will be equal to
the sum of:
(i) the principal component of all scheduled Monthly
Payments due on the Mortgage Loans on or before the
related Due Date (if received or advanced);
(ii) the Stated Principal Balance of each Mortgage Loan
that was, during the related Collection Period,
repurchased from the Trust Fund in connection with
the breach of a representation or warranty pursuant
to Section 2.03 or purchased from the Trust Fund
pursuant to Section 9.01;
(iii) the portion of Unscheduled Payments allocable to
principal of any Mortgage Loan that was liquidated
during the related Collection Period;
(iv) to the extent not included in the preceding clauses,
any other principal payment on any Mortgage Loan
received on or after the Maturity Date thereof, to
the extent received during the related Collection
Period;
(v) to the extent not included in the preceding clauses
(iii) or (iv), all other Principal Prepayments
received in the related Collection Period; and
(vi) to the extent not included in the preceding clauses,
any other full or partial recoveries in respect of
principal, including Insurance Proceeds, Liquidation
Proceeds and Net REO Proceeds received in the related
Collection Period (in the case of clauses (i) through
(vii) net of any reimbursement for related
outstanding P&I Advances allocable to principal and
amounts received on a Mortgage Loan which represent
recoveries in respect of any Subordinate Class
Advance Amount).
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by the Borrower on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
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.
"Principal Recovery Fee": An amount equal to 1.00% of all amounts received
in respect of any Mortgage Loan that has been or is currently a Specially
Serviced Mortgage Loan and allocable as a recovery of principal.
"Private Certificates": The Class PS-1, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5, Class B-6, Class B-6H and Class R Certificates.
"Private Global Certificate": Each of the Regulation S Global Certificates
or Rule 144A Global Certificates with respect to the Class B-1, B-2, B-3, B-4,
B-5 and B-6 Certificates if and so long as such class of Certificates is
registered in the name of a nominee of the Depository.
"Property Advance": As to any Mortgage Loan, any advance made by the
Servicer (or, with respect to the Co-Lender Split Notes, the Other Servicer),
the Co-Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums or as a result of expenses incurred relating to a breach of a
representation, warranty or covenant, pursuant to Section 2.03(e), 3.04 or
Section 3.24, as applicable, or any other expense specified as a Property
Advance herein. Each reference to the payment or reimbursement of a Property
Advance shall be deemed to include, whether or not specifically referred to,
payment or reimbursement of interest thereon at the Advance Rate from and
including the date of the making of such Advance through and including the date
of payment or reimbursement.
"Property Protection Expenses": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred by or on behalf of the Servicer,
Co-Servicer or Special Servicer (without duplication of any amount that
constitutes a Property Advance) in connection with the servicing of a Mortgage
Loan which are "unanticipated," within the meaning of Treasury Regulations
Section 1.860G-1(b)(iii), or any such costs and expenses incurred in connection
with the administration of any REO Property, including, but not limited to, the
cost of (a) the preservation, insurance, restoration, protection and management
of a Mortgaged Property, including the cost of any "forced placed" insurance
policy purchased by the Servicer or the Co-Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Servicer, Co-Servicer or
the Special Servicer is required to cause to be insured pursuant to Section
3.08, (b) obtaining any Insurance Proceeds or any Liquidation Proceeds of the
nature described in clauses (ii) or (iii) of the definition of "Liquidation
Proceeds," (c) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including, without limitation, foreclosures, (d) any Updated
Appraisal or other appraisal and (e) the operation, management, maintenance and
liquidation of any REO Property, including, without limitation, appraisals.
Notwithstanding anything to the contrary, "Property Protection Expenses" shall
not include allocable overhead of the Servicer, the Co-Servicer or the Special
Servicer, which shall include costs for office space, office equipment, supplies
and related expenses, employee salaries and related expenses and similar
internal costs and expenses.
"Prospectus": The Depositor's Prospectus Supplement dated September 25,
1998 relating to the Public Certificates.
"Public Certificates": The Class A-1A, Class A-1B, Class A-2, Class A-3,
Class A-4 and Class A-5 Certificates.
"Public SAT Certificates": The Public Certificates which are not sold to
investors and are retained by the Depositor.
"Qualified Institutional Buyer": A qualified institutional buyer within the
meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance company or
security or bonding company qualified to write the related insurance policy in
the relevant jurisdiction which shall have a claims paying ability of "AA" or
better by Fitch (if such company is not rated by Fitch a rating of at least A-1X
by A.M. Best's Key Rating Guide may be substituted for such Fitch rating) and an
insurance financial strength rating of "A2" or better by Moody's, (ii) in the
case of public liability insurance policies required to be maintained with
respect to REO Properties in accordance with Section 3.08(a), shall have a
claims paying ability of "A" or better by Fitch (or, if such company is not
rated by Fitch a rating of at least A-1X by A.M. Best's Key Rating Guide may be
substituted for such Fitch rating) and an insurance financial strength rating of
"A2" or better by Moody's and (iii) in the case of the fidelity bond and the
errors and omissions insurance required to be maintained pursuant to Section
3.08(c), shall have a claims paying ability rated by each Rating Agency no lower
than two ratings categories (without regard to pluses or minuses or numeric
qualifications) lower than the highest rating of any outstanding Class of
Certificates from time to time (or if such company is not rated by Fitch a
rating of at least A-VIII by A.M. Best's Key Rating Guide may be substituted for
such Fitch rating), but in no event lower than "BBB" by Fitch and an insurance
financial strength rating of "A2" by Moody's, unless in any such case each of
the Rating Agencies has confirmed in writing that obtaining the related
insurance from an insurance company that is not rated by each of the Rating
Agencies (subject to the foregoing exceptions) or that has a lower claims-paying
ability than such requirements shall not result, in and of itself, in a
downgrade, qualification or withdrawal of the then-current ratings by such
Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage" within
the meaning of Code Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any substantially similar successor
provision.
"Rated Final Distribution Date": October 15, 2030, the next Distribution
Date occurring two years after the latest Maturity Date of any of the Mortgage
Loans.
"Rating Agency": Either of Fitch or Moody's. References herein to the
highest long-term unsecured debt rating category of a Rating Agency shall mean
"AAA" with respect to Fitch and "Aaa" with respect to Moody's and in the case of
any other rating agency shall mean such highest rating category or better
without regard to any plus or minus or numerical qualification.
"Real Property": Land or improvements thereon such as buildings or other
inherently permanent structures thereon (including items that are structural
components of the buildings or structures), in each such case as such terms are
used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall mean the
amount, if any, by which the aggregate Certificate Balance of the Certificates
after giving effect to distributions made on such Distribution Date exceeds the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date in
the month in which such Distribution Date occurs.
"Reassignment of Assignment of Leases, Rents and Profits": As defined in
Section 2.01(a)(viii).
"Record Date": With respect to each Distribution Date, the close of
business on the tenth day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; the Record
Date for the Distribution Date occurring on October 16, 1998 for all purposes
other than receipt of distributions is the Closing Date.
"Reduction Interest Distribution Amount": For the Class PS-1 Certificates,
with respect to any Distribution Date and each of clauses seventh, eleventh,
fifteenth, nineteenth, twenty-third, twenty-seventh, thirty-first, thirty-fifth,
thirty-ninth, forty-third and forty-sixth of Section 4.01(b) shall be the amount
of interest accrued for the Interest Accrual Period at the applicable Reduction
Interest Pass-Through Rate for such Interest Accrual Period on the aggregate
amount of Appraisal Reduction Amounts and Delinquency Reduction Amounts
notionally allocated to the related classes referred to in subclause (B) of each
such clause as of such Distribution Date, pursuant to Section 4.01(i).
"Reduction Interest Pass-Through Rate": (i) With respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-6 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 5.8600%, (ii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-5 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 5.8600%, (iii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-4 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 5.8600%, (iv) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-3 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 5.8600%, (v) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-2 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 5.8600%, (vi) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-1 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 5.8600%, (vii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class A-5 Certificates pursuant to Section 4.01(i), 0.03%, (viii) with respect
to Appraisal Reduction Amounts and Delinquency Reduction Amounts notionally
allocated to the Class A-4 Certificates pursuant to Section 4.01(i),the Weighted
Average Net Mortgage Pass-Through Rate minus 7.2300%, (ix) with respect to
Appraisal Reduction Amounts and Delinquency Reduction Amounts notionally
allocated to the Class A-3 Certificates pursuant to Section 4.01(i), 6.7400% and
(x) with respect to Appraisal Reduction Amounts and Delinquency Reduction
Amounts notionally allocated to the Class A-2 Certificates pursuant to Section
4.01(i), 6.4600%.
"Reduction Interest Shortfalls": With respect to any Distribution Date and
each of the clauses sixth, tenth, fourteenth, eighteenth, twenty-second,
twenty-sixth, thirtieth, thirty-fourth, thirty-eighth, forty-second and
fifty-fifth of Section 4.01(b), any shortfall in the Reduction Interest
Distribution Amount required to be distributed to the Class PS-1 Certificates
pursuant to such clause on such Distribution Date.
"Regular Certificates": The Class A-1A, Class A-1B, Class PS-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6 and Class B-6H Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class B-1 Certificates,
Class B-2 Certificates, Class B-3 Certificates, Class B-4 Certificates, Class
B-5 Certificates, Class B-6 Certificates and Class PS-1 Certificates issued as
such on or subsequent to the Closing Date.
"Regulation S Investor": With respect to a transferee of an interest in a
Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section 5.02(c)(i)(B).
"Related Certificate" and "Related Lower-Tier Regular Interest": For any
Class or Classes of Lower-Tier Regular Interests, the related Class of
Certificates set forth below and for any Class of Certificates (other than the
Class PS-1, Class V-1, Class V-2, Class R and Class LR), the related Class of
Lower-Tier Regular Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
------------------- ----------------
Class A-1A Class A-1A-L Interest
Class A-1B Class A-1B-L Interest
Class A-2 Class A-2-L Interest
Class A-3 Class A-3-L Interest
Class A-4 Class A-4-L Interest
Class A-5 Class A-5-L Interest
Class B-1 Class B-1-L Interest
Class B-2 Class B-2-L Interest
Class B-3 Class B-3-L Interest
Class B-4 Class B-4-L Interest
Class B-5 Class B-5-L Interest
Class B-6 Class B-6-L Interest
Class B-6H Class B-6H-L Interest
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the
Code, any amount received or accrued, directly or
indirectly, with respect to such REO Property, if the
determination of such amount depends in whole or in
part on the income or profits derived by any Person
from such property (unless such amount is a fixed
percentage or percentages of receipts or sales and
otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or
indirectly, from any Person if the Trust Fund owns
directly or indirectly (including by attribution) a
ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B)
and (d)(5) of the Code;
(iii) any amount received or accrued, directly or
indirectly, with respect to such REO Property if any
Person Directly Operates such REO Property;
(iv) any amount charged for services that are not
customarily furnished in connection with the rental
of property to tenants in buildings of a similar
class in the same geographic market as such REO
Property within the meaning of Treasury Regulations
Section 1.856-4(b)(1) (whether or not such charges
are separately stated); and
(v) rent attributable to personal property unless such
personal property is leased under, or in connection
with, the lease of such REO Property and, for any
taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or
accrued under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired by
the Special Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the content
described in Exhibit M-5 attached hereto, setting forth, among other things,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Due Date immediately preceding the preparation of such
report, (i) the acquisition date of such REO Property, (ii) the amount of income
collected with respect to any REO Property net of related expenses and other
amounts, if any, received on such REO Property during the related Collection
Period and (iii) the value of the REO Property based on the most recent
appraisal or other valuation thereof available to the Special Servicer as of
such date of determination (including any prepared internally by the Special
Servicer).
"Repurchase Price": With respect to any Mortgage Loan to be repurchased
pursuant to Section 2.03(d), 2.03(e) or 9.01, or any Specially Serviced Mortgage
Loan or any REO Mortgage Loan to be sold or repurchased pursuant to Section
3.18, an amount, calculated by the Servicer or Co-Servicer, as applicable, equal
to:
(i) the outstanding principal balance of such Mortgage
Loan as of the Due Date as to which a payment was
last made by the Borrower (less any P&I Advances
previously made on account of principal); plus
(ii) accrued interest up to the Due Date in the month
following the month in which such repurchase occurs
(less any P&I Advances previously made on account of
interest); plus
(iii) the amount of any unreimbursed Advances (with
interest thereon) and any unreimbursed Servicing
Compensation relating to such Mortgage Loan; plus
(iv) in the event that the Mortgage Loan is required to be
repurchased pursuant to Sections 2.03(d) or 2.03(e),
any expenses reasonably incurred or to be incurred by
the Servicer, the Co-Servicer, the Special Servicer
or 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; plus
(v) with respect to each Mortgage Loan that is a Premium
Loan, any unearned Premium or other amount that would
have been due by the related Borrower if such Premium
Loan were prepaid.
"Repurchase Price Return of Premium Distribution Account": The trust
account or accounts created and maintained as a separate trust account or
accounts by the Trustee pursuant to Section 3.05(f), which shall be entitled
"LaSalle National Bank, as Trustee, in trust for Holders of CAPCO America
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-D7, Repurchase Price Return of Premium Distribution Account" and
which must be an Eligible Account. The Repurchase Price Return of Premium
Distribution Account shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Repurchase Return of Premium Amount": With respect to any Mortgage Loan
required to be repurchased pursuant to Section 2.03(d) or 2.03(e), the Return of
Premium Amount described in clause (v) of the definition of Repurchase Price.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve accounts, if
any, established pursuant to the Mortgage or the Loan Agreement and any Escrow
Account. Any Reserve Account may be a sub-account of a related Cash Collateral
Account. Any Reserve 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 Mortgage
Loan and Section 3.07, which Person shall be taxed on all reinvestment income or
gain thereon. The Servicer or the Co-Servicer, as applicable, shall be permitted
to make withdrawals therefrom for deposit into the related Cash Collateral
Account, if applicable, or the Collection Account or for the purposes set forth
under the related Mortgage Loan.
"Residual Value Policy": With respect to the credit leases related to each
of the Credit Lease Loans (other than the Cinemark Pool B Credit Lease Loan),
the related insurance policy insuring against the diminution in value of the
related Mortgaged Properties.
"Responsible Officer": Any officer of the Asset-Backed Securities Trust
Services Group of the Trustee or the Fiscal Agent (and, in the event that the
Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Servicer and
Co-Servicer by the Trustee and the Fiscal Agent, as such list may from time to
time be amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Return of Premium Amount": In the event of a prepayment or repurchase of a
Premium Loan, any amount paid that is (or would have been had the Mortgage Loan
been repaid rather than repurchased) applied by the Servicer or the Co-Servicer
(in accordance with Section 3.28(d) hereof) to the unamortized portion of the
Premium, which is comprised of the Post-Lock Out Return of Premium Amount, the
Pre-Lock Out Return of Premium Amount and the Repurchase Return of Premium
Amount.
"Revised Mortgage Rate": With respect to the ARD Loans, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for each ARD Loan, as calculated and as set forth in the related ARD Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class B-1 Certificates, Class
B-2 Certificates, Class B-3 Certificates, Class B-4 Certificates, Class B-5
Certificates, Class B-6 Certificates and Class PS-1 Certificates issued as such
on or subsequent to the Closing Date.
"SAT": Subordinate Assets Trust, a Delaware business trust.
"SAT Certificates": The Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates, the Class PS-1 SAT Certificates and the Public
SAT Certificates, collectively.
"Scheduled Final Distribution Date": As to each Class of Certificates,
October 15, 2028, which is the next Distribution Date occurring after the latest
maturity date of any Mortgage Loan.
"Securities Legend": With respect to each Residual Certificate or any
Individual Certificate, the legend set forth in, and substantially in the form
of, Exhibit G hereto.
"Sequential Certificates": The Classes of Certificates other than the Class
PS-1, Class V-1, Class V-2, Class R and Class LR Certificates.
"Servicer": The Capital Company of America Client Services LLC, a Delaware
limited partnership, or any successor Servicer appointed as herein provided.
"Servicer Event of Default": As defined in Section 7.01(a).
"Servicer Prepayment Interest Shortfall": With respect to any Distribution
Date, the amount of any shortfall in collections of interest (adjusted to the
applicable Net Mortgage Pass-Through Rate plus the Trustee Fee Rate) resulting
from a Principal Prepayment on a Mortgage Loan during the related Collection
Period and prior to the related Due Date, which Principal Prepayment, pursuant
to the terms of the related Mortgage Loan, was not permitted to be made on any
date other than a Due Date under such Mortgage Loan, but was nonetheless
accepted by the Servicer or Co-Servicer, as applicable; provided, however, that
the aggregate amount of the Servicer Prepayment Interest Shortfall with respect
to any Interest Accrual Period shall not exceed the amount of the Servicing Fee
attributable to the Mortgage Loan being prepaid and the investment income
accruing on the related Principal Prepayment with respect to such Interest
Accrual Period.
"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, the
Co-Servicer and/or the Special Servicer in such media as may be agreed upon by
the Servicer, the Co-Servicer, the Special Servicer and the Trustee containing
such information regarding the Mortgage 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 Mortgage Loan specified therein,
and containing such additional information as the Servicer, the Co-Servicer, the
Special Servicer and the Trustee may from time to time agree.
"Servicer's Appraisal Estimate": As defined in the definition of Appraisal
Reduction Amount.
"Servicing Compensation": With respect to any Distribution Date, the
related Servicing Fee and any other fees, charges or other amounts payable to
the Servicer or Co-Servicer (excluding that portion of the Servicing Fee that
constitutes the Trustee Fee) on such Distribution Date.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Servicing Fee Rate and (ii) the Stated Principal Balance
of such Mortgage Loan (which amount does not include any balance on any Other
Mortgage Loans) as of the Due Date (after giving effect to all payments of
principal on such Mortgage Loan on such Due Date) in the month preceding the
month in which such Distribution Date occurs.
"Servicing Fee Rate": A rate equal to 0.0533% per annum.
"Servicing Officer": Any officer or employee of the Servicer, the
Co-Servicer or the Special Servicer, as applicable, involved in, or responsible
for, the administration and servicing of the Mortgage Loans or this Agreement
and also, with respect to a particular matter, any other officer or employee to
whom such matter is referred because of such officer's or employee's knowledge
of and familiarity with the particular subject, and, in the case of any
certification required to be signed by a Servicing Officer, such an officer or
employee whose name and specimen signature appears on a list of servicing
officers furnished to the Trustee by the Servicer, the Co-Servicer or the
Special Servicer, as applicable, as such list may from time to time be amended.
"Servicing Standard": With respect to the Servicer, the Co-Servicer or the
Special Servicer shall mean the servicing of the Mortgage Loans by the Servicer,
the Co-Servicer or the Special Servicer solely in the best interests of and for
the benefit of all of the Certificateholders and, in the case of each Lead
Lender Split Note, in the best interests of and for the benefit of the holder of
the Other Note or Other Notes as well (as determined by the Servicer, the
Co-Servicer or the Special Servicer in the exercise of its reasonable judgment),
and in accordance with applicable law, the specific terms of the respective
Mortgage Loans, this Agreement and, in the case of each Split Note, the related
Co-Lender Agreement, and to the extent not inconsistent with the foregoing, in
the same manner in which, and with the same care, skill, prudence and diligence
with which, it (i) services and administers similar mortgage loans comparable to
the Mortgage Loans (including, in the case of the Special Servicer, REO Mortgage
Loans) and held for other similar third-party portfolios or (ii) administers
mortgage loans (including, in the case of the Special Servicer, REO Mortgage
Loans) for its own account, whichever standard is higher, but without regard to:
(i) any known relationship that the Servicer, the
Co-Servicer, the Special Servicer, any sub-servicer
or any Affiliate of the Servicer, the Co-Servicer,
the Special Servicer or any sub-servicer may have
with any Borrower or any other parties to the Pooling
and Servicing Agreement or any Mortgage Loan Seller;
(ii) the ownership of any Certificate by the Servicer, the
Co-Servicer, the Special Servicer or any Affiliate of
the Servicer, the Co-Servicer or the Special
Servicer, as applicable;
(iii) the Servicer's, the Co-Servicer's or the Special
Servicer's obligation to make Advances, or to incur
servicing expenses with respect to the Mortgage
Loans;
(iv) the Servicer's, the Co-Servicer's, the Special
Servicer's or any sub-servicer's right to receive
compensation for its services hereunder or with
respect to any particular transaction;
(v) the ownership, or servicing or management for others,
by the Servicer, the Co-Servicer, the Special
Servicer or any sub-servicer, of any other mortgage
loans or properties; or
(vi) to the extent that an Affiliate of the Mortgage Loan
Sellers becomes the Servicer, the Co-Servicer or the
Special Servicer, any obligation of a Mortgage Loan
Seller to repurchase any Mortgage Loan.
"Similar Law": As defined in Section 5.02(k) hereof.
"Soho Grand Loan": The Mortgage Loan known as Mortgage Loan Number 2 in the
Mortgage Loan Schedule.
"Special Servicer": AMRESCO Management, Inc., a Texas corporation, or its
successor in interest, or any successor Special Servicer appointed as provided
in Section 3.25. In the event that at any time the Servicer or Co-Servicer is
also the Special Servicer hereunder, and the Servicer or Co-Servicer is
terminated or resigns as the Servicer or Co-Servicer hereunder, the Servicer or
Co-Servicer shall be terminated as the Special Servicer hereunder.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan, any of
the Special Servicing Fee and the Principal Recovery Fee which shall be due to
the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and any Distribution Date, an amount per Special Servicing Period equal to
the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
Stated Principal Balance of such Specially Serviced Mortgage Loan as of the Due
Date (after giving effect to all payments of principal on such Specially
Serviced Mortgage Loan on such Due Date) in the month preceding the month in
which such Distribution Date occurs. Notwithstanding the foregoing, the Special
Servicing Fee on any Mortgage Loan which is evidenced by a Lead Lender Split
Note shall equal an amount per Special Servicing Period equal to the product of
(i) one-twelfth of the Special Servicing Fee Rate and (ii) the combined Stated
Principal Balances of the Mortgage Loans evidenced by the pari passu Notes,
provided that the Special Servicing Fee with respect to the principal balance of
the related Specially Serviced Mortgage Loan shall be paid from the Collection
Account and the Special Servicing Fee with respect to the principal balance of
the related Other Mortgage Loan shall be payable under the related co-lender
agreement (which amount may be netted against amounts payable to the holder of
the note evidencing the Other Mortgage Loan).
"Special Servicing Fee Rate": A rate equal to 0.50% per annum (except
that if the Special Servicer is, or is an Affiliate of, the Holder or Holders of
Certificates, representing greater than 50% of the Percentage Interests of the
most subordinate Class of Sequential Certificates then outstanding, the Special
Servicer shall provide written notice thereof to the Servicer and the rate shall
equal 0.25% per annum).
"Special Servicing Period": Any Interest Accrual Period during which a
Mortgage Loan is at any time a Specially Serviced Mortgage Loan.
"Specially Serviced Mortgage Loan": Subject to Section 3.26, any Mortgage
Loan with respect to which:
(i) the related Borrower has not made two consecutive
Monthly Payments (and has not cured at least one such
delinquency by the next Due Date);
(ii) the Servicer or the Co-Servicer, the Trustee or the
Fiscal Agent, individually or collectively, have made
four consecutive P&I Advances (regardless of whether
such P&I Advances have been reimbursed);
(iii) the related Borrower has expressed to the Servicer or
the Co-Servicer, as applicable, an inability to pay
or a hardship in paying the Mortgage Loan in
accordance with its terms;
(iv) the Servicer or the Co-Servicer, as applicable, has
received notice that the Borrower has become the
subject of any bankruptcy, insolvency or similar
proceeding, admitted in writing the inability to pay
its debts as they come due or made an assignment for
the benefit of creditors;
(v) the Servicer or the Co-Servicer, as applicable, has
received notice of a foreclosure or threatened
foreclosure of any lien on the Mortgaged Property
securing the Mortgage Loan;
(vi) a default of which (A) the Servicer or the
Co-Servicer, as applicable, has notice (other than a
failure by the Borrower to pay principal or interest)
and (B) which materially and adversely affects the
interests of the Certificateholders has occurred and
remained unremedied for the applicable grace period
specified in the Mortgage Loan (or, if no grace
period is specified, 60 days);
(vii) the Special Servicer proposes to commence foreclosure
or other workout arrangements; or
(viii) in the opinion of the Servicer or the Co-Servicer, as
applicable (consistent with the Servicing Standard),
a default under a Mortgage Loan is imminent and such
Mortgage Loan deserves the attention of the Special
Servicer.
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause
(i) or (ii) or (viii) above, when the Borrower
thereunder has brought the Mortgage Loan current (or,
with respect to the circumstances described in clause
(viii), pursuant to any work-out implemented by the
Special Servicer) and thereafter made three
consecutive full and timely Monthly Payments
(including pursuant to any workout of the Mortgage
Loan);
(b) with respect to the circumstances described in clause
(iii), (iv), (v) and (vii) above, when such
circumstances cease to exist in the good faith
judgment of the Servicer or the Co-Servicer, as
applicable; or
(c) with respect to the circumstances described in clause
(vi) above, when such default is cured;
provided further, however, that at that time no circumstance identified in
clauses (i) through (vii) above exists that would cause the Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan.
"Split Loans": Each of the Credit Lease Loans, the Airport Industrial
Loan, the Prime Retail Pool Loan, the Morgantown Mall Loan and the Soho Grand
Loan as to which each such total loan is represented by two or more separate
notes, the Split Note and the Other Note or Other Notes.
"Split Note": With respect to each Split Loan, the Note included in the
Trust Fund.
"Spread Rate": The Spread Rate for each Class of Certificates is as set
forth below:
Class Spread Rate
Class PS-1...................................... 4.00%
Class A-1A...................................... 1.55%
Class A-1B...................................... 1.40%
"Startup Day": The day designated as such pursuant to Section 2.06(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, at any date
of determination, an amount equal to (a) the principal balance as of the Cut-off
Date of such Mortgage Loan, minus (b) the sum of (i) the principal portion of
each Monthly Payment due on such Mortgage Loan after the Cut-off Date up to such
date of determination, if received from the Borrower or advanced (including
Subordinate Class Advance Amounts) by the Servicer, Co-Servicer, Trustee, or
Fiscal Agent, (ii) all voluntary and involuntary principal prepayments and other
unscheduled collections of principal received with respect to such Mortgage Loan
and (iii) any principal forgiven by the Special Servicer. The Stated Principal
Balance of a Mortgage Loan with respect to which title to the related Mortgaged
Property has been acquired by the Trust Fund (or, in the case of a Credit Lease
Loan, the Other Trust Fund) is equal to the principal balance thereof
outstanding on the date on which such title is acquired less any Net REO
Proceeds allocated to principal on such Mortgage Loan. The Stated Principal
Balance of a Specially Serviced Mortgage Loan with respect to which the
Servicer, Co-Servicer or Special Servicer has made a Final Recovery
Determination is zero.
"Subordinate Class Advance Amount": As defined in Section 4.06(d).
"Tax Returns": The federal income tax returns on IRS 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 or Lower-Tier REMIC under the REMIC Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date (other than interest accrued prior to
the Cut-off Date); (iii) any REO Property; (iv) all revenues received in respect
of any REO Property; (v) the Servicer's or Co-Servicer's, as applicable, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to this
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guaranties given
as additional security for any Mortgage Loans; (viii) all assets deposited in,
the Collection Account, the Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Repurchase Price Return
of Premium Distribution Account, the Post-Lock Out Return of Premium
Distribution Account, Interest Reserve Account and the Default Interest
Distribution Account, including reinvestment income; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) the rights and
remedies under the Mortgage Loan Purchase and Sale Agreements and the Bloomfield
Purchase Agreement; and (xi) the proceeds of any of the foregoing.
"Trust-Indemnified Party": As defined in Section 8.05(d).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle National Bank, a nationally chartered bank, in its
capacity as trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any Distribution
Date, an amount per Interest Accrual Period equal to the product of (i)
one-twelfth of the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of such Mortgage Loan as of the Due Date (after giving effect to all
payments of principal on such Mortgage Loan on such Due Date) in the month
preceding the month in which such Distribution Date occurs. The Trustee Fee
shall be a portion of the Servicing Fee.
"Trustee Fee Rate": A rate equal to .0033% per annum, which constitutes
part of the Servicing Fee Rate.
"Underwriters": Nomura Securities International, Inc., Morgan Stanley & Co.
Incorporated, and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
"Unscheduled Payments": With respect to a Mortgage Loan and a Collection
Period, all Net Liquidation Proceeds and Net Insurance Proceeds payable under
such Mortgage Loan, the Repurchase Price of any Mortgage Loan that is
repurchased or purchased pursuant to Sections 2.03(d), 2.03(e) or 9.01, and any
other payments under or with respect to such Mortgage Loan not scheduled to be
made, including Principal Prepayments received by the Servicer, but excluding
Prepayment Premiums, during such Collection Period.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO Property,
as the case may be, conducted subsequent to any appraisal performed on or prior
to the Cut-off Date by an appraiser selected by the Servicer or Co-Servicer, as
applicable, and who is an MAI, the costs of which shall be paid as a Property
Advance by the Servicer or Co-Servicer, as applicable.
"Upper-Tier Distribution Account": The trust account or accounts (i)
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(c), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of CAPCO America Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D7, Upper-Tier
Distribution Account" and which must be an Eligible Account or (ii) maintained
as a subaccount of the Distribution Account pursuant to Section 3.06(c).
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a corporation,
partnership (except to the extent provided in applicable Treasury Regulations),
or other entity created or organized in or under the laws of the United States
or any political subdivision thereof, an estate whose income is subject to
United States federal income tax regardless of its source, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust, and one or more such U.S. Persons have the
authority to control all substantial decisions of such trust (or, to the extent
provided in applicable Treasury Regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate or Class of Certificates. At
all times during the term of this Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) 0%, in the case of the Class V-1, Class V-2,
Class R and Class LR Certificates, (b) 2.9% in the case of the Class PS-1
Certificates (the sum of such percentages for each such Class outstanding is the
"Fixed Voting Rights Percentage"); provided that the Voting Rights of the Class
PS-1 Certificates will be reduced to zero on the Distribution Date on which none
of the A-1B, Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B-1,
Class B-2, Class B-3, Class B-4 and Class B-5 Certificates are outstanding, (c)
in the case of any of the Class A-1A, Class A-1B, Class A-2, Class A-3, Class
A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6
and Class B-6H Certificates, a percentage equal to the product of (i) 100% minus
the Fixed Voting Rights Percentage multiplied by (ii) a fraction, the numerator
of which is equal to the aggregate outstanding Certificate Balance of any such
Class and the denominator of which is equal to the aggregate outstanding
Certificate Balances of all Classes of Certificates. The Class PS-1 Certificates
shall not be entitled to vote with respect to proposed extensions of a Specially
Serviced Mortgage Loan. The Voting Rights of any Class of Certificates shall be
allocated among Holders of Certificates of such Class in proportion to their
respective Percentage Interests, except that any Certificate beneficially owned
by the Depositor, the Servicer, the Co-Servicer, the Special Servicer, any
mortgagor, the Trustee, a manager, or any of their respective Affiliates will be
deemed not to be outstanding for voting purposes; provided, however, that for
purposes of obtaining the consent of Certificateholders to an amendment to this
Agreement, any Certificate beneficially owned by the Servicer, Co-Servicer or
Special Servicer or an Affiliate thereof will be deemed to be outstanding,
provided that such amendment does not relate to compensation of the Servicer,
Co-Servicer, Special Servicer or otherwise benefit such entity or an Affiliate
(other than solely in its capacity as Certificateholder); and provided, further,
that for purposes of obtaining the consent of Certificateholders to any action
proposed to be taken by the Special Servicer with respect to a Specially
Serviced Mortgage Loan, any Certificate beneficially owned by the Servicer, the
Co-Servicer or an Affiliate will be deemed to be outstanding if the Special
Servicer is not the Servicer, the Co-Servicer or any Affiliate. The Certificates
beneficially owned by the Special Servicer or an Affiliate thereof shall be
deemed outstanding for purposes of determining who the Directing Holders are and
for purposes of issuing Instructions. The Voting Rights of each Class of
Certificates will be deemed to be reduced on any day on which an Appraisal
Reduction Amount is allocated to such Class. The Fixed Voting Right Percentage
of the Class PS-1 Certificates shall be proportionally reduced upon the
allocation of Appraisal Reduction Amounts to the Class A-1B, Class A-2, Class
A-3, Class A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4 and Class
B-5 Certificates pursuant to Section 4.06(e) based on the amount of such
reduction.
"Watch List": A report substantially containing the content described in
Exhibit M-6 attached hereto, setting forth, among other things, any Mortgage
Loan that is in jeopardy of becoming a Specially Serviced Mortgage Loan.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to any
Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum of the products for each Mortgage
Loan of (i) the Net Mortgage Pass-Through Rate for such Mortgage Loan and (ii)
the Stated Principal Balance of such Mortgage Loan and the denominator of which
is the sum of the Stated Principal Balances of all such Mortgage Loans, as of
their respective Due Date preceding the prior Distribution Date.
"Weighted Average Pass-Through Rate": With respect to any Interest Accrual
Period, a fraction (expressed as a percentage), the numerator of which is the
sum of the products of (i) the Pass-Through Rate with respect to each Class of
Certificates having a Pass-Through Rate (other than the Class PS-1 Certificates)
and (ii) the Certificate Balance of such Class as of the first day of such
Interest Accrual Period and the denominator of which is the sum of the
Certificate Balances of each Class included in clause (i) above as of such date
(provided, in each case, any reductions in Certificate Balance as a result of
distributions or allocations of Realized Losses to such Class occurring in an
Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period).
"Withheld Amounts": As defined in Section 3.27(a).
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans (other
than the Actual/360 Mortgage 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 Mortgage Loans and of
Advances provided for herein shall be made as set forth in such Mortgage Loans
with respect to the calculation of the related Mortgage Rate.
(b) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Servicer or the Trustee; provided, however,
that for purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on the
date they are applied in accordance with Section 3.01(b) to reduce the
outstanding principal balance of such Mortgage Loan on which interest accrues.
(c) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred and is continuing in excess of Monthly Payments shall be
applied to Default Interest and other amounts due on such Mortgage Loan prior to
the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of the definition of "Special Servicing Fee Rate" and Section
3.19, Section 3.25, Section 3.30 and Section 4.06(d), references to the most or
next most subordinate Class of Certificates (or Lower-Tier Regular Interests)
outstanding at any time shall mean the most or next most subordinate Class of
Certificates (or Lower-Tier Regular Interests) then outstanding as among the
Class A-1A, Class A-1B, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6 and Class B-6H
Certificates (and the Classes of Related Lower-Tier Regular Interests). For such
purposes, the Class B-6 and Class B-6H Certificates (and the Classes of Related
Lower-Tier Regular Interests) together shall be considered to be one Class and
the Class A-1A, Class A-1B and Class PS-1 Certificates (and the Classes of
Related Lower-Tier Regular Interests) collectively shall be considered to be one
Class. For purposes of this Agreement, each Class of Certificates other than the
Class V-1, Class V-2, Class LR and Class R Certificates shall be deemed to be
outstanding only to the extent its respective Certificate Balance has not been
reduced to zero. For purposes of this Agreement, the Class V-1 Certificates
shall be deemed to be outstanding so long as there are any Notes outstanding,
the Class V-2 Certificates shall be deemed outstanding so long as there are any
Notes outstanding that provide for the payment of Excess Interest, the Class
B-6H Certificates and the Class B-6H-L Interest shall be deemed to be
outstanding so long as there are any Notes outstanding that provide for payments
of Prepayment Premiums in connection with voluntary or involuntary prepayments
and the Class R and Class LR Certificates shall be deemed to be outstanding so
long as the Trust Fund has not been terminated pursuant to Section 9.01. For
purposes of this Agreement, the Class PS-1 Certificates shall be deemed to be
outstanding until the PS-1 Notional Balance has been reduced to zero.
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage
Loan Purchase and Sale Agreement.
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent herein provided) all the right, title and
interest of the Depositor in and to the Mortgage Loans, including all rights to
payment in respect thereof, except as set forth below, and any security interest
thereunder (whether in real or personal property and whether tangible or
intangible) in favor of the Depositor, and all Reserve Accounts, Lock-Box
Accounts, Cash Collateral Accounts and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date. In connection with such
transfer and assignment, the Depositor shall make a cash deposit to the
Collection Account in an amount equal to the Cash Deposit. The Depositor,
concurrently with execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Depositor
in, to and under the Mortgage Loan Purchase and Sale Agreements and, in, to and
under the Bloomfield Purchase Agreement as assignee of CCA's rights thereunder
to the extent related to any Mortgage Loan. The Servicer, the Co-Servicer, the
Special Servicer or the Trustee shall notify the responsible Mortgage Loan
Seller and the Depositor upon such party's becoming aware of any breach of the
representations and warranties contained in this Agreement or the Mortgage Loan
Purchase and Sale Agreement that gives rise to a cure or repurchase obligation;
provided, that the failure of the Servicer, the Co-Servicer, the Special
Servicer or Trustee to give such notification shall not constitute a waiver of
any cure or repurchase obligation. The Depositor shall cause the Reserve
Accounts, Cash Collateral Accounts and Lock-Box Accounts to be transferred to
and held in the name of the Servicer or Co-Servicer, as applicable, on behalf of
the Trustee as successor to the Mortgage Loan Sellers and the Originators.
In connection with such transfer and assignment, the Depositor does hereby
deliver to, and deposit with, the Custodian (on behalf of the Trustee), with
copies to the Servicer or Co-Servicer, as applicable, and the Special Servicer,
the following documents or instruments with respect to each Mortgage Loan so
assigned (provided, however, the documents specified in item (ix) shall be
delivered only to the Servicer or Co-Servicer, as applicable:
(i) the original of the Note, endorsed without recourse to the
order of the Trustee in the following form: "Pay to the
order of LaSalle National Bank, as Trustee, without
recourse," or in blank, which Note and all endorsements
thereon shall, unless the Mortgage Loan was originated by
the Mortgage Loan Seller (as indicated on the Mortgage Loan
Schedule), show a complete chain of endorsement from the
Originator to the Trustee;
(ii) the original recorded Mortgage or counterpart thereof
showing the Originator as mortgagee or, if any such
original Mortgage has not been returned from the applicable
public recording office, a copy thereof certified to be a
true and complete copy of the original thereof submitted
for recording;
(iii) an executed Assignment of Mortgage in suitable form for
recordation in the jurisdiction in which the Mortgaged
Property is located to "LaSalle National Bank, as Trustee,
without recourse;"
(iv) if the related security agreement is separate from the
Mortgage, the original executed version or counterpart
thereof of such security agreement and the assignment
thereof to Trustee;
(v) a copy of the UCC-1 financing statement, together with an
original executed UCC-2 or UCC-3 financing statement, in a
form suitable for filing, disclosing the assignment to the
Trustee of the security interest in the personal property
(if any) constituting security for repayment of the
Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof
relating to such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the
original pro forma title insurance policy), together with
any endorsements thereto;
(viii) if any related Assignment of Leases, Rents and Profits is
separate from the Mortgage, the original executed version
or counterpart thereof, together with an executed
reassignment of such instrument to the Trustee (a
"Reassignment of Assignment of Leases, Rents and Profits")
in suitable form for recordation in the jurisdiction in
which the Mortgaged Property is located (which
reassignment, however, may be included in the Assignment of
Mortgage and need not be a separate instrument);
(ix) copies of the original Environmental Reports of the
Mortgaged Properties made in connection with origination of
the Mortgage Loans, if any;
(x) copies of the original Management Agreements, if any, for
the Mortgaged Property;
(xi) a copy of the related ground lease, as amended, for the
Mortgaged Property, if any;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment
of contracts and the assignment thereof to the Trustee;
(xiii) 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 Reserve Accounts, 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 Reserve Accounts, Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and
UCC-3 financing statements assigning such security interest
to the Trustee on behalf of the Certificateholders);
(xiv) any and all amendments, modifications and supplements to,
and waivers related to, any of the foregoing;
(xv) with respect to the Split Loans, the related Co- Lender
Agreement;
(xvi) with respect to the Credit Lease Loans, the original of any
Residual Value Policy, the related credit tenant lease and
tenant estoppels, and any guaranty of the credit lease; and
(xvii) any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Servicer or Co-Servicer,
as applicable, shall, to the extent possession of recorded copies of each
Mortgage and the documents described in Sections 2.01(a)(iv), (v), (viii),
(xii), (xiii) and (xiv) have been delivered to it, at the expense of the
Depositor, (1) prepare and record (a) each Assignment of Mortgage referred to in
Section 2.01(a)(iii) which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in Section
2.01(a)(viii) (if not otherwise included in the related Assignment of Mortgage)
which has not yet been submitted for recordation; and (2) prepare and file each
UCC-2 or UCC-3 financing statement referred to in Section 2.01(a)(v) or (xiii)
which has not yet been submitted for filing. The Servicer or Co-Servicer, as
applicable, shall upon delivery promptly prepare and submit (and in no event
later than 30 Business Days following the receipt of the related documents in
the case of clause 1(a) above and 60 days following the receipt of the
applicable documents in the case of clauses 1(b) and 2 above) for recording or
filing, as the case may be, in the appropriate public recording office, each
such document. In the event that any such document is lost or returned
unrecorded because of a defect therein, the Servicer or Co-Servicer, as
applicable, at the expense of the Depositor, shall use its best efforts to
promptly prepare a substitute document for signature by the Depositor, and
thereafter the Servicer or Co-Servicer, as applicable, shall cause each such
document to be duly recorded. The Servicer or Co-Servicer, as applicable, shall,
promptly upon receipt of the original recorded copy (and in no event later than
five Business Days following such receipt) deliver such original to the
Custodian. Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains the original
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, after any has been recorded, the obligations
hereunder of the Depositor shall be deemed to have been satisfied upon delivery
to the Custodian of a copy of such Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable,
certified by the public recording office to be a true and complete copy of the
recorded original thereof. If a pro forma title insurance policy has been
delivered to the Custodian in lieu of an original title insurance policy, the
Depositor will promptly deliver to the Custodian the related original title
insurance policy upon receipt thereof. The Depositor shall promptly cause the
UCC-1's referred to in Section 2.01(a)(v) to be filed in the applicable public
recording office and upon filing will promptly deliver to the Custodian the
related UCC-1, with evidence of filing thereon. The Depositor shall reimburse
the Servicer or Co-Servicer, as applicable, for all out-of-pocket expenses
incurred and filing fees paid by the Servicer or Co-Servicer, as applicable, in
connection with its obligations under this paragraph. Copies of recorded or
filed Assignments, Reassignments, UCC-1's and UCC-3's shall be delivered to the
Trustee by the Depositor or Servicer, as applicable.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee,
the Servicer or the Co-Servicer, as the case may be, in trust for the benefit of
the Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
(b) Each of the Split Loans is secured by a Mortgaged Property which
serves as security for the Split Note and the related Other Note or Other Notes
formerly or currently held by CCA. The Other Note or Other Notes may currently
or in the future be included in trust funds (the "Other Trust Funds") created in
connection with issuance of separate series of commercial mortgage pass-through
certificates. Each Split Note is a pari passu note with the related Other Note
or Other Notes, and each is entitled to payments made by the respective Borrower
and other amounts received in respect of the related Mortgaged Property pro rata
on the basis of amounts owing under the Split Loan and each Other Note.
At such time as any Lead Lender Split Note becomes a Co-Lender
Split Note, in accordance with the terms of the related Co-Lender Agreement, the
Trustee shall release or cause to be released to the trustee of the Other Trust
Fund (the "Other Trustee") under the related pooling and servicing agreement the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, representation or warranty, as
shall be prepared by the Servicer or the Co-Servicer, as applicable, to vest in
the Other Trustee, and any rights of the Other Trustee in, to and under the
Mortgage Loan Purchase and Sale Agreement as it related to such Mortgage Loan
that was initially transferred to the Trust Fund under Section 2.01, and the
Trustee and the Servicer or the Co-Servicer, as applicable, shall have no
further responsibility with regard to such Mortgage File.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded
document described in Section 2.01 on the Closing Date, the Depositor shall use
its best efforts, promptly upon receipt thereof and in any case not later than
45 days from the Closing Date, to deliver such original or certified recorded
documents to the Custodian (unless the Depositor is delayed in making such
delivery by reason of the fact that such documents shall not have been returned
by the appropriate recording office in which case it shall notify the Custodian
and the Trustee in writing of such delay and shall deliver such documents to the
Custodian promptly upon the Depositor's receipt thereof). By its execution and
delivery of this Agreement, the Trustee acknowledges the assignment to it of the
Mortgage Loans in good faith without notice of adverse claims and declares that
the Custodian holds and will hold such documents and all others delivered to it
constituting the Mortgage File (to the extent the documents constituting the
Mortgage File are actually delivered to the Custodian) for any Mortgage Loan
assigned to the Trustee hereunder in trust, upon the conditions herein set
forth, for the use and benefit of all present and future Certificateholders.
With the exception of any Notes listed by the Trustee on an exception report and
delivered to the Depositor on the Closing Date, the Trustee hereby acknowledges
the receipt of the Notes or, if applicable, a lost note affidavit. The Trustee
agrees to review each Mortgage File within 90 days after the later of (a) the
Trustee's receipt of such Mortgage File or (b) execution and delivery of this
Agreement, to ascertain that all documents (other than documents referred to in
clause (ix) of Section 2.01(a) which shall be delivered to the Servicer)
referred to in Section 2.01 above (in the case of the documents referred to in
Section 2.01(a)(iv), (v), (vi), (vii) (in the case of any endorsement thereto),
(viii), (x) through (xiv), (xvi) and (xvii), as identified to it in writing by
the Depositor) and any original recorded documents referred to in the first
sentence of this Section included in the delivery of a Mortgage File have been
received, have been executed, appear to be what they purport to be, purport to
be recorded or filed (as applicable) and have not been torn, mutilated or
otherwise defaced, and that such documents relate to the Mortgage Loans
identified in the Mortgage Loan Schedule. In so doing, the Trustee may rely on
the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, appear
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor and the Mortgage
Loan Seller by providing a written report, setting forth for each affected
Mortgage Loan, with particularity, the nature of the defective or missing
document. The Depositor shall, or shall cause the applicable Mortgage Loan
Seller to, deliver an executed, recorded or undamaged document, as applicable,
or, if the failure to deliver such document in such form has a material adverse
effect on the security provided by the related Mortgaged Property, the Depositor
shall, or shall cause the responsible Mortgage Loan Sellers to, repurchase the
related Mortgage Loan in the manner provided in Section 2.03. None of the
Servicer, the Co-Servicer, the Special Servicer and the Trustee shall be
responsible for any loss, cost, damage or expense to the Trust Fund resulting
from any failure to receive any document constituting a portion of a Mortgage
File noted on such a report or for any failure by the Depositor to use its best
efforts to deliver any such document.
In reviewing any Mortgage File pursuant to the preceding paragraph or
Section 2.01, the Servicer and the Co-Servicer shall have no responsibility to
cause the Trustee to, and the Trustee will have no responsibility to, determine
whether any document or opinion is legal, valid, binding or enforceable, whether
the text of any assignment or endorsement is in proper or recordable form
(except, if applicable, to determine if the Trustee is the assignee or
endorsee), whether any document has been recorded in accordance with the
requirements of any applicable jurisdiction, whether a blanket assignment is
permitted in any applicable jurisdiction, or whether any Person executing any
document or rendering any opinion is authorized to do so or whether any
signature thereon is genuine.
The Trustee shall hold that portion of the Trust Fund delivered to the
Trustee consisting of "instruments" (as such term is defined in Section 9-105(i)
of the Uniform Commercial Code as in effect in Illinois on the date hereof) in
Illinois and, except as otherwise specifically provided in this Agreement, shall
not remove such instruments from Illinois, as applicable, unless it receives an
Opinion of Counsel (obtained and delivered at the expense of the Person
requesting the removal of such instruments from Illinois) that in the event the
transfer of the Mortgage Loans to the Trustee is deemed not to be a sale, after
such removal, the Trustee will possess a first priority perfected security
interest in such instruments.
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor.
(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;
(ii) The Depositor has taken all necessary 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
Mortgage Loans in accordance with this Agreement;
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Depositor and 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 in
accordance with the terms of this Agreement, 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);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor
will not conflict with any provision of its certificate of
incorporation or bylaws, or any law or regulation to which
the Depositor is subject, or conflict with, result in a
breach of or constitute a default under (or an event which
with notice or lapse of time or both would constitute a
default under) any of the terms, conditions or provisions
of any 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;
(v) The certificate of incorporation of the Depositor provides
that the Depositor is permitted to engage in only the
following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge,
finance, refinance and otherwise deal with (I) loans
secured by first or second mortgages, deeds of trust or
similar liens on residential, including single-family
and multi-family, commercial or mixed commercial and
residential properties, shares issued by private
non-profit housing corporations, or manufactured
housing contracts, (II) any participation interest in,
security (in bond or pass-through form) or funding
agreement based on, backed or collateralized by,
directly or indirectly, any of the foregoing (the loans
described in clause (A)(I) and the participation
interests, securities and funding agreements described
in clause (A)(II), collectively, "Mortgage Loans"),
(III) receivables and loan obligations, whether secured
or unsecured, including, but not limited to, retail
automotive, truck or manufactured housing installment
sale contracts or loans or automotive, truck or
manufactured housing leases, consumer or commercial
loans or leases, credit card accounts, accounts
receivable, corporate receivables, trade receivables,
trade bills, boat and recreational vehicle loans,
computer or other equipment loans or leases, mobile
home loans and pads, construction equipment, dealer and
floor plan financing notes, insurance policy loans,
medical and health care receivables, municipal and
other governmental leases, short-term notes secured by
a lien on a small business or all or part of its
assets, and loans to lesser-developed countries, (IV)
any participation interest in, security (in bond or
pass-through form) or funding agreement based on,
backed or collateralized by, directly or indirectly,
any of the foregoing (the receivables and loans
described in clause (A)(III) and the participation
interests, securities and funding agreements described
in clause (A)(IV), collectively, "Receivables");
(B) to authorize and issue one or more series (each, a
"Pass-Through Series") of pass-through securities
("Certificates") pursuant to pooling and servicing
agreements (each, a "Pooling and Servicing Agreement"),
each of which Pass-Through Series (I) represents an
ownership interest in Mortgage Loans or Receivables,
related property and/or collections in respect thereof
and (II) may be structured to contain one or more
classes of Certificates, each class having the
characteristics specified in the related Pooling and
Servicing Agreement, and to acquire, own, hold, sell,
transfer, assign, pledge, finance or refinance one or
more Certificates or classes of Certificates of any
Pass-Through Series;
(C) to establish one or more trusts ("Trusts") to issue,
acquire, own, and hold one or more series (each, a
"Bond Series") of debt obligations ("Bonds"), each
issued pursuant to an indenture ("Indenture"), each of
which bond series (I) is collateralized by Mortgage
Loans, receivables and any supplemental collateral (the
"Supplemental Collateral"; Mortgage Loans, Receivables
and Supplemental Collateral, collectively, the
"Collateral") and/or related property and/or
collections in respect thereof and (II) may be
structured to contain one or more classes of Bonds,
each class having the characteristics specified in the
related Indenture, and to acquire, own, hold, sell,
transfer, assign, pledge, finance or refinance one or
more Bonds or classes of Bonds of any Bond Series;
provided, however, that the Bonds of any Bond Series
have been rated in one of the two highest rating
categories by one or more nationally recognized
statistical rating agencies and, provided further, that
the Bonds of any Bond Series other than the initial
Bond Series issued by a Trust have been rated in the
same or a higher rating category by the nationally
recognized statistical rating agency or agencies that
rated the initial Bond Series issued by such Trust;
(D) to issue, acquire, assume, own, hold, sell, transfer,
assign, pledge and finance indebtedness that (I) is
subordinated to the Bonds; (II) is nonrecourse to the
Depositor and the related Trust other than to cash flow
on the Collateral securing a Bond Series issued by the
related Trust in excess of amounts necessary to pay
holders of Bonds ("Bondholders") of such Bond Series;
(III) does not constitute a claim against the Depositor
to the extent that funds are insufficient to pay such
indebtedness; and (IV) does not result in a reduction,
withdrawal or qualifying of the rating or ratings then
assigned to the Bonds of any Bond Series issued by the
Trust issuing such subordinated indebtedness, as
confirmed in writing by the nationally recognized
statistical rating agency or agencies rating such Bond
Series;
(E) (I) to establish one or more Trusts to engage in any
one or more of the activities described in (A) and (D)
above, each of which Trusts and any Trust formed to
engage in one or more of the activities described in
(C) above may deliver to the Depositor Certificates
("Trust Certificates") representing the ownership
interest in the assets of such Trust, (II) to acquire,
own, hold, sell, transfer, assign, pledge, finance, and
otherwise deal with any or all of the Trust
Certificates in any Trust that it establishes and (III)
to act as settlor or depositor of such Trusts and to
invest in or sell Trust Certificates; and
(F) to engage in any other acts and activities and to
exercise any powers permitted to corporations under the
laws of the State of Delaware which are incidental to,
or connected with, the foregoing, and necessary,
suitable or convenient to accomplish any of the
foregoing;
(vi) The certificate of incorporation further provides that the
Depositor:
(A) will (1) maintain and prepare financial reports,
financial statements, books and records and bank
accounts separate from those of its affiliates and any
other person or entity and (2) will not permit any
affiliate or any other person or entity independent
access to its bank accounts;
(B) will not commingle the funds and other assets of the
Depositor with those of any affiliate, any guarantor of
any of the obligations of the Depositor (each, a
"Guarantor"), or any affiliate of any Guarantor, or any
other person or entity;
(C) shall conduct its own business and hold all of its
assets in its own name;
(D) shall remain solvent and pay its debts and liabilities
(including employment and overhead expenses) from its
assets as the same shall become due;
(E) shall do all things necessary to observe corporate and
other organizational formalities and preserve its
existence as a single-purpose, bankruptcy-remote entity
in accordance with the standards of the statistical
rating organizations providing ratings on any
Certificates, as such standards are in effect on the
date of issuance of such Certificates;
(F) shall enter into transactions with affiliates only if
each such transaction is commercially reasonable and on
substantially similar terms as a transaction that would
be entered into on an arm's length basis with a person
or entity other than an affiliate of the Depositor;
(G) shall compensate each of its consultants and agents
from its own funds for services provided to it;
(H) shall not guarantee, become obligated for, or hold
itself or its credit out to be responsible for, or
available to satisfy, the debts or obligations of any
other person or entity or the decisions or actions
respecting the daily business or affairs of any other
person or entity;
(I) shall not (1) acquire obligations or securities of any
affiliate or any of the stockholders of the Depositor
or (2) buy or hold any evidence of indebtedness issued
by any other person or entity, other than cash,
investment-grade securities, Receivables and notes
evidencing the indebtedness of a borrower under the
related Mortgage Loan;
(J) will allocate fairly and reasonably and pay from its
own funds the cost of (1) any overhead expenses
(including the cost of any office space) shared with
any affiliate of the Depositor and (2) any services
(such as asset management, legal and accounting) that
are provided jointly to the Depositor and one or more
of its affiliates;
(K) will maintain and utilize separate stationery and
invoices bearing its own name and allocate separate
office space (which may be a separately identified area
in office space shared with one or more affiliates) and
maintain a separate sign in the office directory of the
building in which the Depositor maintains its principal
place of business;
(L) shall not make any loans or advances to, or pledge its
assets for the benefit of, any other person or entity,
including, without limitation, any affiliate, Guarantor
or any affiliate of any Guarantor;
(M) will be, and at times will hold itself out to the
public as, a legal entity separate and distinct from
any other person or entity;
(N) shall not identify itself or any of its affiliates as a
division or part of any other person or entity;
(O) will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its
size and character and in light of its contemplated
business operations;
(P) shall maintain its assets in such a manner that it will
not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any
affiliate, any Guarantor, or any affiliate of any
Guarantor, or any other person or entity;
(Q) shall not incur any indebtedness, other than
indebtedness incurred in the ordinary course of the
Depositor's business, or grant a security interest of
any nature whatsoever in the Depositor's assets, other
than pursuant to, or as set forth in, any documents
relating to the issuance of the Certificates or Bonds;
and
(R) shall not (1) transfer, lease or sell, in one
transaction or any combination of transactions, all or
substantially all of the properties or assets of the
Depositor other than the transfer of Mortgage Loans or
Receivables to a trust in connection with the issuance
of Certificates or Bonds or in connection with a sale
of Receivables, Mortgage Loans or other securities in
the ordinary course of the Depositor's business, (2)
merge or consolidate with or into any other business
entity, (3) dissolve, wind up or liquidate or take any
act or omission as a result of which the Depositor
would be dissolved, wound up or liquidated, in whole or
in part, (4) engage in any business activity not
described in Article III hereof, or (5) amend, modify,
terminate or waive the Certificate of Incorporation or
by-laws of the Depositor unless, with respect to the
foregoing clauses (1) through (5), the Depositor shall
have received written confirmation from each of the
statistical rating organizations providing ratings on
any Certificates or Bonds on the date of issuance of
such Certificates or Bonds (each, a "Rating Agency")
that such action, in and of itself, will not cause such
Rating Agency to qualify, downgrade or withdraw any of
its then-current rating for any Certificate or Bond.
Capitalized terms defined in clauses (v) and (vi)
shall apply only to clauses (v) and (vi).
(vii) There is no action, suit or proceeding pending against the
Depositor in any court or by or before any other governmental
agency or instrumentality which would materially and adversely
affect the ability of the Depositor to carry out its obligations
under this Agreement; and
(viii) The Trustee, if not the owner of the related Mortgage Loan, will
have a valid and perfected security interest of first priority in
each of the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to each
Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the Trustee:
(a) the Note and the Mortgage were not subject to an assignment or
pledge, and (b) the Depositor had good title to, and was the sole
owner of, the Mortgage Loan and had full right to transfer and
sell the Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest;
(ii) The Depositor 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;
(iii) The related Assignment of Mortgage constitutes the legal, valid
and binding assignment of such Mortgage from the Depositor to the
Trustee, and any related Reassignment of Assignment of Leases,
Rents and Profits constitutes the legal, valid and binding
assignment from the Depositor to the Trustee;
(iv) No claims have been made by the Depositor under the lender's title
insurance policy, and the Depositor has not done, by act or
omission, anything which would impair the coverage of such
lender's title insurance policy;
(v) All of the representations and warranties of the Mortgage Loan
Sellers contained in the Mortgage Loan Purchase and Sale
Agreements are true and correct as of the Cut-off Date;
(vi) (1) Such Mortgage Loan is directly secured by a Mortgage on Real
Property, and (2) either (i) substantially all of the proceeds of
such Mortgage Loan were used to acquire or improve or protect an
interest in real property that, at the origination date, was the
only security for the Mortgage Loan (in the case of a Mortgage
Loan that has not 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) or (ii) the fair market value of
such real property 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 for
purposes of this clause (ii) 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) of this
clause (ii) shall be made on an aggregate 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) of this clause (ii) shall
be made on an aggregate basis);
(vii) The information set forth with respect to such Mortgage Loan on
the Mortgage Loan Schedule is true and correct in all material
respects as of the dates respecting which such information is
given, or if no date is specified, as of the Cut-off Date; and
(viii) The acquisition of any Other Note by an Other Trust Fund will not
result in a qualification, withdrawal or downgrade of any rating
assigned to the Certificates.
(c) It is understood and agreed that the representations and warranties set
forth in this Section 2.03 shall survive delivery of the respective Mortgage
Files to the Trustee until the termination of this Agreement, and shall inure to
the benefit of the Certificateholders and the Servicer or the Co-Servicer, as
applicable.
(d) Upon discovery by the Custodian, the Servicer, the Co-Servicer, the
Special Servicer or the Trustee of a breach of the representation and warranty
set forth in Section 2.03(b)(vi) or that any Mortgage Loan otherwise fails to
constitute a Qualified Mortgage, such Person shall give prompt notice thereof to
the Depositor and the Depositor shall correct such condition or repurchase or
cause the responsible Mortgage Loan Seller to repurchase such Mortgage Loan at
the Repurchase Price within 90 days of discovery of such failure; it being
understood and agreed that none of such Persons has an obligation to conduct any
investigation with respect to such matters. It is understood and agreed that the
obligations of the Depositor set forth in this Section 2.03(d) to cure or
repurchase a Mortgage Loan which fails to constitute a Qualified Mortgage shall
be the sole remedies available to the Trustee against the Depositor respecting a
breach of a representation or warranty set forth in Section 2.03(b)(vi).
(e) Upon discovery by the Custodian, the Servicer, the Co-Servicer, the
Special Servicer or the Trustee of a breach of any representation or warranty of
the Mortgage Loan Sellers in the Mortgage Loan Purchase and Sale Agreements with
respect to any Mortgage Loan, or that any document required to be included in
the Mortgage File does not conform to the requirements of Section 2.01, such
Person shall give prompt notice thereof to the appropriate Mortgage Loan Seller
and such Mortgage Loan Seller shall, to the extent such Mortgage Loan Seller is
obligated to cure or repurchase the related Mortgage Loan under the terms of the
related Mortgage Loan Purchase and Sale Agreement, either cure such breach or
repurchase said Mortgage Loan at the Repurchase Price within 90 days of the
receipt of notice of the breach as provided in the related Mortgage Loan
Purchase and Sale Agreement; it being understood and agreed that none of the
Custodian, the Servicer, the Co-Servicer, the Special Servicer, and the Trustee
has an obligation to conduct any investigation with respect to such matters
(except, in the case of the Mortgage Files, to the extent provided in Section
2.01); provided, however, that in the event that such breach is capable of being
cured as determined by the Servicer, the Co-Servicer, or the Special Servicer,
as applicable, but not within such 90 day period and the appropriate Mortgage
Loan Seller has commenced and is diligently proceeding with the cure of such
breach within such 90 day period (other than a breach that is also a breach of
Section 2.03(b)(vi) or 2.03(d)), the appropriate Mortgage Loan Seller shall have
an additional 90 days to complete such cure; provided, further, that with
respect to such additional 90 day period the appropriate Mortgage Loan Seller
shall have delivered an officer's certificate to the Trustee and the Servicer
setting forth the reason such breach is not capable of being cured within the
initial 90 day period and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such breach will be cured within the additional 90 day period;
and, provided, further, the Repurchase Price shall include interest on any
Advances made in respect of the related Mortgage Loan. Any out-of-pocket
expenses incurred by the Servicer or the Co-Servicer pursuant to this Section
2.03(e), and which have not been previously reimbursed, and which in the good
faith business judgment of the Servicer or the Co-Servicer would not be
ultimately recoverable under clause (iv) of the definition of Repurchase Price
shall constitute a Property Advance hereunder.
(f) Upon receipt by the Servicer or the Co-Servicer from the Depositor or
appropriate Mortgage Loan Seller of the Repurchase Price for the repurchased
Mortgage Loan, the Servicer or the Co-Servicer, as applicable, shall deposit
such amount in the Collection Account, and the Trustee, pursuant to Section
3.11, shall, upon receipt of a certificate of a Servicing Officer certifying as
to the receipt by the Servicer or the Co-Servicer, as applicable, of the
Repurchase Price and the deposit of the Repurchase Price into the Collection
Account pursuant to this Section 2.03(f), release or cause to be released to the
Depositor or the appropriate Mortgage Loan Seller the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as shall be prepared by the
Servicer or the Co-Servicer to vest in the Depositor or the appropriate Mortgage
Loan Seller any Mortgage Loan released pursuant hereto, and any rights of the
Depositor in, to and under the Mortgage Loan Purchase and Sale Agreement as it
related to such Mortgage Loan that was initially transferred to the Trust Fund
under Section 2.01, and if applicable any rights of CCA or Depositor in, to and
under the related Bloomfield Purchase Agreement as it related to such Mortgage
Loan that were initially transferred to the Trust Fund under Section 2.01, and
the Trustee and the Servicer or the Co-Servicer, as applicable, shall have no
further responsibility with regard to such Mortgage File.
(g) In the event that any Mortgage Loan Seller incurs any expense in
connection with curing a breach of a representation or warranty pursuant to
Section 2.03(e) which also constitutes a default under the related Mortgage
Loan, such Mortgage Loan Seller shall have a right, subrogated to that of the
Trustee, as successor to the mortgagee, to recover the amount of such expenses
from the related Borrower. The Servicer and the Co-Servicer shall use reasonable
efforts in recovering, or assisting such Mortgage Loan Seller in recovering,
from the related Borrower the amount of any such expenses. Any out-of-pocket
expenses incurred by the Servicer or the Co-Servicer pursuant to this Section
2.03(g), and which have not been previously reimbursed, and which in the good
faith business judgment of the Servicer or the Co-Servicer would not be
ultimately recoverable under clause (iv) of the definition of Repurchase Price
shall constitute a Property Advance hereunder.
(h) In the event that any litigation is commenced which alleges facts
which, in the judgment of the Depositor, could constitute a breach of any of the
Depositor's representations and warranties relating to the Mortgage Loans, the
Depositor hereby reserves the right to conduct the defense of such litigation at
its expense.
(i) If for any reason the Mortgage Loan Sellers or the Depositor fails to
fulfill its obligations under this Section 2.03 with respect to any Mortgage
Loan, the Servicer, the Co-Servicer or Special Servicer shall use reasonable
efforts in enforcing any obligation of the Originator to cure or repurchase such
Mortgage Loan under the terms of the related Originator Purchase Agreement. Any
out-of-pocket expenses incurred by the Servicer, the Co-Servicer or Special
Servicer, as applicable, pursuant to this Section 2.03(i), and which have not
been previously reimbursed, and which in the good faith business judgment of the
Servicer or the Co-Servicer would not be ultimately recoverable under clause
(iv) of the definition of Repurchase Price shall constitute a Property Advance
hereunder.
(j) The Depositor additionally represents, warrants and covenants that:
(i) The Depositor will at all times maintain its valid corporate
existence in good standing under the laws of the state of its
incorporation. The Depositor has otherwise complied and will
comply in all respects with the laws of the state of its
incorporation, and with all other laws, federal, state, or
otherwise, insofar as they are related to its separate corporate
existence, and it will observe all requisite corporate
formalities.
(ii) Although all directors and officers of the Depositor, except any
director who is Independent, are directors, officers, or employees
of CCA and/or Nomura Securities International, Inc. ("NSI"), such
persons have not directly received, and will not directly receive,
any remuneration from the Depositor for serving as directors or
officers of the Depositor. The Depositor is charged and pays a
fair estimate, adjusted every six months, of payroll and related
expenses for work and services performed by the directors,
officers, and employees of CCA or NSI for services performed as
directors or officers of the Depositor. The officers and directors
of the Depositor, when acting in such capacity, act in the best
interests of the Depositor, consistent with their fiduciary duties
as directors and officers of such corporation. The Depositor is
not obligated to pay or distribute to CCA or any of its
Affiliates, by dividend or otherwise, any portion of any of its
profits or its other assets. The Depositor's profits, if any, may,
at the discretion of the Depositor's Board of Directors and
subject to applicable law, be transferred by dividend to the
Depositor's shareholder(s), which is presently CCA.
(iii) The Depositor maintains its business in separately allocated and
identifiable office space within the offices of its Affiliates in
New York City. The Depositor's presence at such offices is noted
in the building directory and on other signs. As set forth above
in connection with payroll expenses, the Depositor is charged and
pays rent in an amount corresponding to the portion of the office
space allocated to the Depositor.
(iv) The Depositor has a telephone number different from any telephone
numbers of CCA and the Financing Trust and NSI or any of their
Affiliates. The Depositor uses its own stationery that indicates
its separate telephone number and identifies it as a separate
corporate entity.
(v) The Depositor shall not fail to correct any known misunderstanding
regarding the separate identity of the Depositor, or purport to
operate as an integrated, single economic unit with any of its
Affiliates in dealing with any unaffiliated entity. Neither the
Mortgage Loan Sellers nor NSI finance the Depositor's operations
or guarantees the Depositor's obligations, and the Depositor does
not finance the operations or guarantee the obligations of the
Mortgage Loan Sellers or NSI; provided, however, that CCA has made
capital contributions to the Depositor, and may make additional
capital contributions from time to time in connection with the
expansion of the Depositor's business or to enable the Depositor
to invest in privately-offered Certificates. However, CCA does not
pay or subsidize any of the Depositor's normal operating expenses.
The Depositor will pay from its own funds its operating expenses
and liabilities, including legal fees and expenses, or will
reimburse the Mortgage Loan Sellers or NSI for any such expenses
or liabilities paid by the Mortgage Loan Sellers or NSI on the
Depositor's behalf. To facilitate the registration process, CCA
and/or NSI has advanced and may advance certain expenses of the
Depositor associated with the registration process. The Depositor
has repaid or will repay to CCA and/or NSI these expenses on an
allocable basis out of the proceeds of mortgage pass-through
transactions. Neither the Mortgage Loan Sellers nor NSI have
funded or will fund the Depositor's operating expenses. The assets
or creditworthiness of the Mortgage Loan Sellers, NSI or any of
their Affiliates are not held out by the Depositor as being
available for the payment of the Depositor's liabilities or
obligations, and the assets or creditworthiness of the Depositor
are not held out by the Depositor as being available for the
payment of the liabilities of the Mortgage Loan Sellers, NSI or
any of their Affiliates other than the Depositor. The assets or
creditworthiness of the Depositor are not held out by the Mortgage
Loan Sellers or NSI, to the knowledge of the Depositor, and the
Depositor will not permit that its assets or creditworthiness will
be held out by the Mortgage Loan Sellers or NSI, as being
available for the payment of the liabilities or obligations of the
Mortgage Loan Sellers, NSI or any of their Affiliates. The assets
or creditworthiness of the Mortgage Loan Sellers, NSI or any of
their Affiliates are not held out by the Mortgage Loan Sellers or
NSI, to the knowledge of the Depositor, and the Depositor will not
permit that the assets or creditworthiness of the Mortgage Loan
Sellers or NSI will be held out by the Mortgage Loan Sellers or
NSI, as being available for the payment of the liabilities of the
Depositor. The Depositor's assets are now, and are expected in the
future to be, sufficient to pay the Depositor's ongoing expenses
as they are incurred and to discharge all of the Depositor's
liabilities in the event that the business of the Depositor is
required to be liquidated.
(vi) The separate corporate existence of the Depositor is not used by
either the Depositor, or, to the knowledge of the Depositor, by
the Mortgage Loan Sellers or NSI, and the Depositor will not
permit that its separate corporate existence will be used by the
Mortgage Loan Sellers or NSI, to abuse creditors or to perpetrate
a fraud, injury, or injustice on creditors.
(vii) The Depositor's existence is not dependent on it being a
subsidiary of CCA or an Affiliate of NSI and it is expected that
the Depositor would be able to maintain its business and affairs
even if it were not a subsidiary of CCA or an Affiliate of NSI. To
the knowledge of the Depositor, CCA's existence is not dependent
on the Depositor being its subsidiary and it is expected that CCA
would be able to maintain its business and affairs even if the
Depositor were not its subsidiary. To the knowledge of the
Depositor, the Mortgage Loan Sellers' existence is not dependent
on the Depositor being their Affiliate and it is expected that NSI
would be able to maintain its business and affairs even if the
Depositor were not its Affiliate. The Depositor conducts its
business separate and apart from the business conducted by any
other person or entity.
(viii) The Depositor maintains corporate records distinct and separately
identifiable from the corporate records of the Mortgage Loan
Sellers, NSI and any other person or entity. The Depositor
prepares monthly financial records distinct and separately
identifiable from the financial records of the Mortgage Loan
Sellers, NSI or any of their Affiliates. These statements and
reports are prepared and maintained in accordance with generally
accepted accounting principles, susceptible to audit and audited,
at least annually, in connection with the audit of the Depositor
and its Affiliates on a consolidated basis by independent public
accountants in accordance with generally accepted auditing
standards. Such consolidated financial statements will henceforth
indicate that the assets of the Depositor are not available to
satisfy the creditors of any entity other than the Depositor. The
Depositor keeps its funds separate and apart from the funds of the
Mortgage Loan Sellers, NSI and any of their Affiliates, and its
other assets are separately identifiable and distinguishable from
the assets of the Mortgage Loan Sellers, NSI and any of their
Affiliates.
(ix) The Depositor acts solely in its own corporate name and solely
through its duly authorized officers or agents. The Depositor
complies with the provisions of its Certificate of Incorporation
and its By-Laws and complies in all material respects, in
connection with its separate existence, with the laws of the state
in which it is incorporated. In addition, the sole shareholder and
the Board of Directors of the Depositor hold all such meetings or
execute consents necessary to authorize corporate action by the
Depositor, and the Depositor maintains appropriate minutes of such
meetings or records of its written consents. The Depositor
observes all requisite corporate formalities.
(x) All transactions between the Mortgage Loan Sellers or NSI (or any
of their Affiliates), on the one hand, and the Depositor, on the
other, are, and will be, duly authorized and documented, and
recorded accurately in the appropriate books and records of the
Depositor, and to the knowledge of the Depositor, in the
appropriate books and records of the Mortgage Loan Sellers or NSI,
if the Mortgage Loan Sellers or NSI is a party to such
transaction. All such transactions are fair to each party,
constitute exchanges for fair consideration and for reasonably
equivalent value, and are made in good faith and without any
actual intent to hinder, delay, or defraud creditors. The
Depositor will not take any action, and will not engage in
transactions with the Mortgage Loan Sellers, NSI or any of their
Affiliates unless the respective Boards of Directors or officers,
as applicable, of the Depositor and the Mortgage Loan Sellers or
NSI, if the Mortgage Loan Sellers or NSI, respectively, is a party
to such transaction, determine in a reasonable fashion that such
actions or transactions are in their respective companies' best
interests.
(xi) The Depositor intends the transfer of the Mortgage Loans from the
Mortgage Loan Sellers to the Depositor pursuant to the Mortgage
Loan Purchase and Sale Agreements to be a sale of the Mortgage
Loans. The Depositor intends the transfer of the Mortgage Loans
from the Depositor to the Trustee pursuant to this Agreement, and
the transfer of Certificates to NSI (all Certificates so
transferred, the "NSI Certificates"), to be sales from the
Depositor to the Trustee (the "Depositor/Trustee Transfer") and
from the Depositor to NSI (the "Depositor/NSI Transfer"),
respectively. The Depositor will treat the transfer of the
Mortgage Loans, the Depositor/Trustee Transfer and the
Depositor/NSI Transfer as sales for accounting and tax purposes.
The purchase prices for the Mortgage Loans and the NSI
Certificates reflect the good faith determinations of the
Depositor of the fair market value of the Mortgage Loans and the
NSI Certificates, respectively, and are equal to the prices that
the Depositor believes would be paid in sales of the Mortgage
Loans or the NSI Certificates between non-affiliated entities. No
provision exists whereby such consideration may be modified
subsequent to closing, and the Depositor has no obligation to
repay such consideration, or interest thereon, to the Trustee or
NSI, as applicable. The Depositor will receive the consideration
for the NSI Certificates.
(xii) The Depositor irrevocably transfers and relinquishes all rights
with respect to the Mortgage Loans and, specifically, has no right
to sell, pledge or otherwise dispose of the Mortgage Loans.
Subject to the terms of this Agreement, the Trustee is free to
deal with the Mortgage Loans as trustee of trust property on
behalf of the Certificateholders. The Depositor transfers the
Mortgage Loans without recourse and has no obligation to deliver
other property to the Trustee either in substitution for or in
addition to the Mortgage Loans in the event of a credit loss or
decline in value of the Mortgage Loans. The Depositor has no right
to transfer the Mortgage Loans back to the Mortgage Loan Sellers.
(xiii) The Depositor has not transferred the Mortgage Loans in
contemplation of insolvency or with a design to prefer one or more
creditors to the exclusion in whole or in part of others or with
an actual intent to hinder, delay or defraud any of its creditors.
(xiv) The assets of the Depositor are now, and are expected in the
future to be, sufficient to pay the ongoing business expenses of
the Depositor as they are incurred and to discharge all of its
liabilities in the event that the business of the Depositor is
required to be liquidated.
(xv) The property remaining in the hands of the Depositor after giving
effect to the Transfers is not an unreasonably small amount of
capital for the business in which the Depositor is engaged.
(xvi) No later than 90 days subsequent to the date hereof, the Depositor
will either (i) sell to unaffiliated investors, either directly or
through the Underwriters or the Placement Agents, as applicable,
any SAT Certificates repurchased and held by the Depositor, (ii)
transfer such SAT Certificates to SAT (if it has not already done
so) or permit such SAT Certificates to remain in SAT, (iii)
transfer such SAT Certificates to another Delaware business trust
wholly owned by CCA, whose trust agreement will contain all of the
provisions required under the rating agencies' criteria concerning
a special-purpose business trust, and either provide a
non-consolidation opinion between CCA and the new Delaware
business trust acceptable to the Rating Agencies or provide
confirmation in a form acceptable to the Rating Agencies that a
consolidation of the new Delaware business trust with CCA would
not invalidate the opinion given herein with respect to the sale
of the CCA Mortgage Loans from CCA to the Depositor or (iv) a
combination of the foregoing. On and after the 91st day subsequent
to the date hereof, the Depositor may repurchase SAT Certificates
only in conjunction with a simultaneous resale of the repurchased
SAT Certificates to an unaffiliated third party. The Class R
Certificate will be retained by the Depositor until such time that
the Class R Certificate is placed with an investor by the
Placement Agents.
SECTION 2.04. Representations, Warranties and Covenants of the
Servicer, Co-Servicer, Special Servicer, Operating Advisor
and Trustee.
(a) The Servicer, as Servicer, hereby represents, warrants and covenants
that as of the Closing Date or as of such date specifically provided herein:
(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 has all material licenses necessary to carry on
its business as now being conducted or is in compliance with the
laws of each state (within the United States of America) in which
any Mortgaged Property is located to the extent necessary to
comply with its duties and responsibilities hereunder with respect
to each Mortgage Loan in accordance with the terms of this
Agreement; to the best knowledge of the Servicer, it is not
required to become licensed for such purposes with respect to the
Cayman Islands, but the Servicer shall endeavor to become so
licensed if so required;
(ii) The Servicer has the full limited liability company power,
authority and legal right to execute and deliver this Agreement
and to perform in accordance herewith; the execution and delivery
of this Agreement by the Servicer and its performance and
compliance with the terms of this Agreement will not violate the
Servicer's certificate of formation or operating agreement, 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 contract, agreement or other instrument to
which the Servicer is a party or which may be applicable to the
Servicer or any of its assets;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Servicer and, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of the Servicer, enforceable
against it in accordance with the terms of this Agreement, 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),
and all requisite partnership action has been taken by the
Servicer to make this Agreement and all agreements contemplated
hereby valid and binding upon the Servicer in accordance with
their terms;
(iv) The Servicer is not in violation of, and the execution and
delivery of this Agreement by the Servicer and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court
binding on the Servicer or any order or regulation of any federal,
state, municipal or governmental agency having jurisdiction, or
result in the creation or imposition of any lien, charge or
encumbrance which, in any such event, would have consequences that
would materially and adversely affect the condition (financial or
otherwise) or operation of the Servicer or its properties or
impair the ability of the Trust Fund to realize on the Mortgage
Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Servicer which, either in any one instance
or in the aggregate, would result in any material adverse change
in the business, operations, financial condition, properties or
assets of the Servicer, or in any material impairment of the
right, or would, if adversely determined, materially impair the
ability of the Servicer, to carry on its business substantially as
now conducted, or in any material liability on the part of the
Servicer, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be
taken in connection with the obligations of the Servicer
contemplated herein, or which would be likely to impair materially
the ability of the Servicer to perform under the terms of this
Agreement; and
(vi) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or
body, is required for the execution, delivery and performance by
the Servicer of or compliance by the Servicer with this Agreement,
or if required, such approval has been obtained prior to the
Cut-off Date.
(b) Each of the Co-Servicer, the Special Servicer and the Operating
Advisor, respectively, hereby represents, warrants and covenants that as of the
Closing Date or as of such date specifically provided herein:
(i) Each of the Co-Servicer, the Special Servicer and the Operating
Advisor is, in the case of the Co-Servicer and the Operating
Advisor, a limited partnership, and, in the case of the Special
Servicer, a corporation, duly organized, validly existing and in
good standing, in the case of the Co-Servicer and the Operating
Advisor, under the laws of Delaware and, in the case of the
Special Servicer, under the laws of the State of Texas and, in
each case, has all licenses necessary to carry on its business as
now being conducted or will be in compliance with the laws of each
state (within the United States of America) in which any Mortgaged
Property is located to the extent necessary to comply with its
duties and responsibilities hereunder with respect to each
Mortgage Loan in accordance with the terms of this Agreement;
(ii) Each of the Co-Servicer, the Special Servicer and the Operating
Advisor has the full power, authority and legal right to execute
and deliver this Agreement and to perform in accordance herewith;
the execution and delivery of this Agreement by each of the
Co-Servicer, the Special Servicer and the Operating Advisor and
its performance and compliance with the terms of this Agreement
will not violate, in the case of the Co-Servicer and the Operating
Advisor, the Co-Servicer's and the Operating Advisor's certificate
of limited partnership or partnership agreement, respectively,
and, in the case of the Special Servicer, the Special Servicer's
articles of incorporation or by-laws or, in each case, 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 contract, agreement or other instrument to which
the Co-Servicer, the Special Servicer or the Operating Advisor is
a party or which may be applicable to the Co-Servicer, the Special
Servicer or the Operating Advisor or any of their assets,
respectively;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by each of the Co-Servicer, the Special Servicer and the
Operating Advisor and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of each of the Co-Servicer, the Special
Servicer and the Operating Advisor, enforceable against each in
accordance with the terms of this Agreement, 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),
and, in the case of the Co-Servicer and the Operating Advisor, all
requisite partnership action, and, in the case of the Special
Servicer, all requisite corporate action, has been taken by each
of the Co-Servicer, the Special Servicer and the Operating Advisor
to make this Agreement and all agreements contemplated hereby
valid and binding upon each of the Co-Servicer, the Special
Servicer and the Operating Advisor in accordance with their terms;
(iv) Each of the Co-Servicer, the Special Servicer and the Operating
Advisor is not in violation of, and the execution and delivery of
this Agreement by each of the Co-Servicer, the Special Servicer
and the Operating Advisor and its performance and compliance with
the terms of this Agreement will not constitute a violation with
respect to, any order or decree of any court binding on the
Co-Servicer, the Special Servicer or the Operating Advisor or any
order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, or result in the creation
or imposition of any lien, charge or encumbrance which, in any
such event, would have consequences that would materially and
adversely affect the condition (financial or otherwise) or
operation of any of the Co-Servicer, the Special Servicer or the
Operating Advisor or its properties or impair the ability of the
Trust Fund to realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Co-Servicer, the Special Servicer or the
Operating Advisor which, either in any one instance or in the
aggregate, would result in any material adverse change in the
business, operations, financial condition, properties or assets of
the Co-Servicer, the Special Servicer or the Operating Advisor, or
in any material impairment of the right, or would, if adversely
determined, materially impair the ability of the Co-Servicer, the
Special Servicer or the Operating Advisor, to carry on its
business substantially as now conducted, or in any material
liability on the part of the Co-Servicer, the Special Servicer or
the Operating Advisor, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action
taken or to be taken in connection with the obligations of the
Co-Servicer, the Special Servicer or the Operating Advisor
contemplated herein, or which would be likely to impair materially
the ability of the Co-Servicer, the Special Servicer or the
Operating Advisor to perform under the terms of this Agreement;
and
(vi) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or
body, is required for the execution, delivery and performance by
the Co-Servicer, the Special Servicer or the Operating Advisor of
or compliance by the Co-Servicer, the Special Servicer or the
Operating Advisor with this Agreement, or if required, such
approval has been obtained prior to the Cut-off Date.
(c) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee, the Depositor and
the Servicer, Co-Servicer, Special Servicer or Operating Advisor, as the case
may be. Upon discovery by the Depositor, the Servicer, Co-Servicer, Special
Servicer, Operating Advisor or a Responsible Officer of the Trustee (or upon
written notice thereof from any Certificateholder) of a breach of any of the
representations and warranties set forth in this Section which materially and
adversely affects the interests of the Certificateholders, the Servicer, the
Co-Servicer, the Special Servicer, the Operating Advisor or the Trustee in any
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties hereto and the Mortgage Loan Sellers.
(d) The Trustee hereby represents and warrants that as of the Closing Date:
(i) The Trustee is a nationally chartered bank duly organized, validly
existing, and in good standing under the laws of the United States and
has full power, authority and legal right to own its properties and
conduct its business as presently conducted and to execute, deliver
and perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a legal, valid and binding
instrument enforceable against the Trustee in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii)Neither the execution and delivery of this Agreement by the Trustee
nor the consummation by the Trustee of the transactions herein
contemplated to be performed by the Trustee, nor compliance by the
Trustee with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
applicable law (subject to the appointment in accordance with such
applicable law of any co-trustee or separate trustee required pursuant
to this Agreement), governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties or the organizational
documents of the Trustee or the terms of any material agreement,
instrument or indenture to which the Trustee is a party or by which it
is bound.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery of the Mortgage Files to the Custodian (to the extent the documents
constituting the Mortgage Files are actually delivered to the Custodian),
subject to the provisions of Section 2.01 and Section 2.02 and, concurrently
with such delivery, (i) acknowledges the issuance of and hereby declares that it
holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the
Holders of the Regular Certificates and the Class R Certificates and (ii) has
caused to be executed and caused to be authenticated and delivered to or upon
the order of the Depositor, or as directed by the terms of this Agreement, Class
A-1A, Class A-1B, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-6H, Class
V-1, Class V-2, Class R and Class LR Certificates in authorized denominations,
in each case registered in the names set forth in such order or so directed in
this Agreement and duly authenticated by the Authenticating Agent, which
Certificates (described in the preceding clause (ii)) and Lower-Tier Regular
Interests evidence ownership of the entire Trust Fund.
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class A-1A-L, Class A-1B-L, Class A-2-L, Class A-3-L, Class A-4-L,
Class A-5-L, Class B-1-L, Class B-2-L, Class B-3-L, Class B-4-L, Class B-5-L,
Class B-6-L and Class B-6H-L Interests are hereby designated as "regular
interests" in the Lower-Tier REMIC within the meaning of Section 860G(a)(1) of
the Code, and the Class LR Certificates are hereby designated as the sole Class
of "residual interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(2) of the Code. The Class A-1A, Class A-1B, Class A-2, Class A-3, Class
A-4, Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6
and Class B-6H Certificates are hereby designated as "regular interests" in, and
the Class PS-1 Certificates are hereby designated as representing a beneficial
interest in a "regular interest" in, the Upper-Tier REMIC within the meaning of
Section 860G(a)(1) of the Code and the Class R Certificates are hereby
designated as the sole Class of "residual interests" in the Upper-Tier REMIC
within the meaning of Section 860G(a)(2) of the Code. The Class PS-1
Certificates represent a "specified portion" of the interest payments on the
Class A-1A-L, the Class A-1B-L, Class A-2-L, Class A-3-L, Class A-4-L, Class
A-5-L, Class B-1-L, Class B-2-L, Class B-3-L, Class B-4-L, Class B-5-L, Class
B-6-L and Class B-6H-L Interests, within the meaning of Treasury Regulations
Section 1.860G-1(a)(2). The Closing Date is hereby designated as the "Startup
Day" of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code. The "latest possible maturity date" of the
Lower-Tier Regular Interests and the Regular Certificates for purposes of
Section 860G(a)(1) of the Code is the Scheduled Final Distribution Date. The
initial Certificate Balance of each Class of the Lower-Tier Regular Interests is
equal to the Certificate Balance of the Related Certificates. The interest rate
for each Class of Lower-Tier Regular Interests is a per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
(b) The Class PS-1 Certificates represent a pro rata undivided beneficial
interest in the right to receive the Repurchase Return of Premium Amount. The
Depositor is the beneficial owner of any Post-Lock Out Return of Premium Amount.
The Class V-1 Certificates represent pro rata undivided beneficial interests in
the Default Interest subject to the liability of the Trust Fund to pay Advance
Interest Amounts. The Class V-2 Certificates represent beneficial pro rata
undivided interests in the Excess Interest. The Class V-1 and Class V-2
Certificates do not represent regular or residual interests in either the
Upper-Tier REMIC or the Lower-Tier REMIC.
(c) None of the Depositor, the Trustee, the Servicer, the Co-Servicer, the
Operating Advisor, the Fiscal Agent or the Special Servicer shall enter into any
arrangement by which the Trust Fund will receive a fee or other compensation for
services other than as specifically contemplated herein.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Co-Servicer to Act as
Co-Servicer; Special Servicer to Act as Special Servicer;
Administration of the Mortgage Loans.
(a) The Servicer, the Co-Servicer and the Special Servicer, each as an
independent contractor servicer, shall service and administer (i) in the case of
the Servicer, the Mortgage Loans (other than the Mortgage Loans serviced by the
Co-Servicer), (ii) in the case of the Co-Servicer, the Equity Loans and (iii) in
the case of the Special Servicer, the Specially Serviced Mortgage Loans, each on
behalf of the Trust Fund and the Trustee (as trustee for Certificateholders) in
accordance with any and all applicable laws, the terms of this Agreement, the
respective Mortgage Loan, and to the extent consistent with the foregoing, the
Servicing Standard.
The Servicer's, Co-Servicer's or Special Servicer's liability for actions
and omissions in its capacity as Servicer, Co-Servicer or Special Servicer, as
the case may be, hereunder is limited as provided herein (including, without
limitation, pursuant to Section 6.03 hereof). To the extent consistent with the
foregoing and subject to any express limitations set forth in this Agreement,
the Servicer, Co-Servicer and Special Servicer shall seek to maximize the timely
and complete recovery of principal and interest on the Notes; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Servicer, Co-Servicer or Special Servicer of the collectability
of the Mortgage Loans. Subject only to the Servicing Standard, the Servicer,
Co-Servicer and Special Servicer shall have full power and authority, acting
alone or through sub-servicers (subject to paragraph (c) of this Section 3.01
and to Section 3.02), to do or cause to be done any and all things in connection
with such servicing and administration which it may deem consistent with the
Servicing Standard and, in its reasonable judgment, in the best interests of the
Certificateholders, including, without limitation, with respect to each Mortgage
Loan, to prepare, execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien on
each Mortgaged Property and related collateral; (ii) subject to Sections 3.09,
3.10 and 3.30, any modifications, waivers, consents or amendments to or with
respect to any documents contained in the related Mortgage File; and (iii) any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans and the Mortgaged Properties. The Servicer, Co-Servicer and
Special Servicer shall provide to the Borrowers any reports required to be
provided to them pursuant to the Mortgage Loans. Subject to Section 3.11, the
Trustee shall, upon the receipt of a written request of a Servicing Officer,
execute and deliver to the Servicer, Co-Servicer and Special Servicer any powers
of attorney and other documents prepared by the Servicer, Co-Servicer and
Special Servicer and necessary or appropriate (as certified in such written
request) to enable the Servicer, Co-Servicer and Special Servicer to carry out
their servicing and administrative duties hereunder.
(b) Unless otherwise provided in the related Note, the Servicer or
Co-Servicer, as applicable, shall apply any partial Principal Prepayment
received on a Mortgage Loan on a date other than a Due Date to the principal
balance of such Mortgage Loan as of the Due Date immediately following the date
of receipt of such partial Principal Prepayment. Unless otherwise provided in
the related Note, the Servicer or Co-Servicer, as applicable, shall apply any
amounts received on U.S. Treasury obligations (which shall not be redeemed by
the Servicer or Co-Servicer, as applicable, prior to the maturity thereof) in
respect of a Mortgage Loan being defeased pursuant to its terms to the principal
balance of and interest on such Mortgage Loan as of the Due Date immediately
following the receipt of such amounts.
(c) Each of the Servicer, the Co-Servicer and the Special Servicer may
enter into sub-servicing agreements with third parties with respect to any of
its respective obligations hereunder, provided, that (i) any such agreement
shall be consistent with the provisions of this Agreement, (ii) no sub-servicer
retained by the Servicer, the Co-Servicer or the Special Servicer, as
applicable, shall grant any modification, waiver or amendment to any Mortgage
Loan without the approval of the Servicer, the Co-Servicer or the Special
Servicer, as applicable, which approval shall be given or withheld in accordance
with the procedures set forth in Sections 3.09, 3.10, 3.28 or 3.30 (or the
definition of Minimum Defaulted Monthly Payment), and (iii) such agreement shall
be consistent with the Servicing Standard (to the extent consistent with this
Agreement). Any such sub-servicing agreement may permit the sub-servicer to
delegate its duties to agents or subcontractors so long as the related
agreements or arrangements with such agents or subcontractors are consistent
with the provisions of this Section 3.01(c).
Any sub-servicing agreement entered into by the Servicer, the Co-Servicer
or the Special Servicer, as applicable, shall provide that it may be assumed or
terminated by the Trustee or the Servicer, respectively, if the Trustee or the
Servicer, respectively, has assumed the duties of the Servicer or the Special
Servicer, respectively, or any successor Servicer or Special Servicer, as
applicable, without cost or obligation to the assuming or terminating party or
the Trust Fund, upon the assumption by such party of the obligations of the
Servicer or the Special Servicer, as applicable, pursuant to Section 7.02.
Any sub-servicing agreement entered into by the Servicer or the Co-Servicer
shall provide that, with respect to any Mortgage Loan in which an Affiliate of
the sub-servicer holds any subordinate debt, preferred equity investment or
mezzanine debt of a related Borrower or its Affiliate, such sub-servicer may
sub-service such Mortgage Loan; provided, however, that the Servicer or the
Co-Servicer, as applicable, shall make all decisions with respect to the
administration of any such Mortgage Loan including, without limitation, lease
approvals, calculation of and releases from reserves, modifications, waivers and
amendments of the terms thereof, releases of collateral and transfers to special
servicing.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Servicer, the Co-Servicer or the Special Servicer, as applicable,
and such sub-servicer alone, and the Trustee, the Trust Fund and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the sub-servicer,
except as set forth in Section 3.01(d) and no provision herein may be construed
so as to require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Servicer or Co-Servicer assumes the
obligations of the Servicer or Co-Servicer, respectively, or if the Servicer or
any successor Special Servicer assumes the obligations of the Special Servicer,
in each case in accordance with Section 7.02, the Trustee, the Servicer or such
successor, as applicable, to the extent necessary to permit the Trustee, the
Servicer or such successor, as applicable, to carry out the provisions of
Section 7.02, shall, without act or deed on the part of the Trustee, the
Servicer or such successor, as applicable, succeed to all of the rights and
obligations of the Servicer, the Co-Servicer or the Special Servicer, as
applicable, under any sub-servicing agreement entered into by the Servicer or
the Special Servicer, as applicable, pursuant to Section 3.01(c), subject to the
right of termination by the Trustee or Servicer, as applicable, set forth in
Section 3.01(c). In such event, the Trustee, the Servicer or the successor
Servicer, Co-Servicer or Special Servicer, as applicable, shall be deemed to
have assumed all of the Servicer's, Co-Servicer's or Special Servicer's
interest, as applicable, therein (but not any liabilities or obligations in
respect of acts or omissions of the Servicer, the Co-Servicer or the Special
Servicer, as applicable, prior to such deemed assumption) and to have replaced
the Servicer or the Special Servicer, as applicable, as a party to such
sub-servicing agreement to the same extent as if such sub-servicing agreement
had been assigned to the Trustee, the Servicer or such successor Servicer or
successor Special Servicer, as applicable, except that the Servicer, the
Co-Servicer or the Special Servicer, as applicable, shall not thereby be
relieved of any liability or obligations under such sub-servicing agreement that
accrued prior to the succession of the Trustee, the Servicer or the successor
Servicer or successor Special Servicer, as applicable.
In the event that the Trustee, the Servicer or any successor Servicer or
Special Servicer, as applicable, assumes the servicing obligations of the
Servicer, the Co-Servicer or the Special Servicer, as applicable, upon request
of the Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, the Servicer, the Co-Servicer or Special Servicer shall at its own
expense (except in the event that the Servicer or the Co-Servicer is terminated
pursuant to Section 6.04(c), in which event, at the expense of the
Certificateholders effecting such termination) deliver to the Trustee, the
Servicer or such successor Servicer or Special Servicer, as applicable, all
documents and records relating to any sub-servicing agreement and the Mortgage
Loans then being serviced thereunder and an accounting of amounts collected and
held by it, if any, and will otherwise use its best efforts to effect the
orderly and efficient transfer of any sub-servicing agreement to the Trustee,
the Servicer or the successor Servicer or Special Servicer, as applicable.
SECTION 3.02. Liability of the Servicer, Co-Servicer and Special
Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer,
Co-Servicer or Special Servicer and any Person acting as sub-servicer (or its
agents or subcontractors) or any reference to actions taken through any Person
acting as sub-servicer or otherwise, the Servicer, Co-Servicer or Special
Servicer, as applicable, shall remain obligated and primarily liable to the
Trustee and Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue of such sub-servicing
agreements or arrangements or by virtue of indemnification from the Depositor or
any other Person acting as sub-servicer (or its agents or subcontractors) to the
same extent and under the same terms and conditions as if the Servicer,
Co-Servicer or Special Servicer, as applicable, alone were servicing and
administering the Mortgage Loans. Each of the Servicer, the Co-Servicer and the
Special Servicer shall be entitled to enter into an agreement with any
sub-servicer providing for indemnification of the Servicer, Co-Servicer or
Special Servicer, as applicable, by such sub-servicer, and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification, but no
such agreement for indemnification shall be deemed to limit or modify this
Agreement.
SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Servicer, the Co-Servicer or the Special Servicer, as applicable,
shall use reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder, and
shall follow the Servicing Standard with respect to such collection procedures.
With respect to each Specially Serviced Mortgage Loan, the Special Servicer
shall use its reasonable efforts to collect income statements and rent rolls
from Borrowers as required by the Loan Documents and the terms hereof and shall
provide copies thereof to the Servicer as provided herein. Consistent with the
foregoing, the Servicer, Co-Servicer or Special Servicer, as applicable, may in
its discretion waive any late payment charge (but not any Default Interest) in
connection with any delinquent Monthly Payment with respect to any Mortgage
Loan. In addition, the Servicer and the Co-Servicer shall be entitled to take
such actions with respect to the collection of payments on the Mortgage Loans as
are permitted or required under Section 3.28 hereof.
(b) In the event that the Servicer, Co-Servicer or Special Servicer
receives, or receives notice from the related Borrower that it will be
receiving, Excess Interest in any Collection Period, the Servicer, Co-Servicer
or Special Servicer, as applicable, will promptly notify the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage Loan),
the Servicer or the Co-Servicer, as applicable, shall maintain accurate records
with respect to each related Mortgaged Property reflecting the status of taxes,
assessments and other similar items that are or may become a lien on the related
Mortgaged Property and the status of insurance premiums payable with respect
thereto. From time to time, the Servicer or the Co-Servicer, as applicable,
shall (i) obtain all bills for the payment of such items (including renewal
premiums), and (ii) effect payment of all such bills with respect to such
Mortgaged Properties prior to the applicable penalty or termination date, in
each case employing for such purpose Escrow Payments as allowed under the terms
of the related Mortgage Loan. If a Borrower fails to make any such payment on a
timely basis or collections from the Borrower are insufficient to pay any such
item before the applicable penalty or termination date, (or with respect to
Mortgage Loans with no Escrow Accounts for such purpose, upon determining (using
efforts consistent with the Servicing Standard) that the Borrower has not made
such payment) the Servicer or the Co-Servicer, as applicable, shall advance the
amount of any shortfall as a Property Advance unless the Servicer or the
Co-Servicer, as applicable, determines in its good faith business judgment that
such Advance would be a Nonrecoverable Advance. The Servicer and the Co-Servicer
shall be entitled to reimbursement of Advances, with interest thereon at the
Advance Rate, that it makes pursuant to the preceding sentence from amounts
received on or in respect of the related Mortgage Loan respecting which such
Advance was made or if such Advance has become a Nonrecoverable Advance, to the
extent permitted by Section 3.06 of this Agreement. No costs incurred by the
Servicer or the Co-Servicer in effecting the payment of taxes and assessments on
the Mortgaged Properties shall, for the purpose of calculating distributions to
Certificateholders, be added to the amount owing under the related Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so permit.
(b) Each of the Servicer and the Co-Servicer shall segregate and hold all
funds collected and received pursuant to any Mortgage Loan constituting Escrow
Payments separate and apart from any of its own funds and general assets, and
shall establish and maintain one or more segregated custodial accounts (each, an
"Escrow Account") into which all Escrow Payments shall be deposited within one
(1) Business Day after receipt by the Servicer or the Co-Servicer. The Servicer
and the Co-Servicer shall also deposit into each Escrow Account any amounts
representing losses on Permitted Investments pursuant to Section 3.07(b) and any
Insurance Proceeds or Liquidation Proceeds which are required to be applied to
the restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan. Escrow Accounts shall be Eligible Accounts (except to the extent
the related Mortgage Loan requires it to be held in an account that is not an
Eligible Account) and shall be entitled "The Capital Company of America Client
Services LLC, as Servicer, in trust for LaSalle National Bank, as Trustee in
trust for Holders of CAPCO America Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D7, and Various Borrowers" or
"AMRESCO Services, L.P., as Co-Servicer, in trust for LaSalle National Bank, as
Trustee in trust for Holders of CAPCO America Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D7, and Various
Borrowers." Withdrawals from an Escrow Account may be made by the Servicer or
the Co-Servicer, as applicable, only:
(i) to effect timely payments of items constituting Escrow Payments for
the related Mortgage;
(ii) to transfer funds to the Collection Account to reimburse the Servicer,
the Co-Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as applicable, for any Advance (with interest thereon at the
Advance Rate) relating to Escrow Payments, but only from amounts
received with respect to the related Mortgage Loan which represent
late collections of Escrow Payments thereunder;
(iii)for application to the restoration or repair of the related Mortgaged
Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of
this Agreement;
(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Borrower under law
or by the terms of the Mortgage Loan, or otherwise to the Servicer;
and
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05. Collection Account, Distribution Account, Upper-Tier
Distribution Account, Default Interest Distribution
Account, Excess Interest Distribution Account, Repurchase
Price Return of Premium Distribution Account and Post-Lock
Out Return of Premium Distribution Amount
(a) Each of the Servicer and the Co-Servicer shall establish and maintain a
Collection Account in the Trustee's name, for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests. Each reference herein to the Collection Account shall be deemed to be
a reference to the Collection Account maintained by the Servicer and the
Co-Servicer with respect to the Mortgage Loans serviced by the Servicer or the
Co-Servicer, respectively. The Collection Account shall be established and
maintained as an Eligible Account. The Servicer and the Co-Servicer shall
deposit or cause to be deposited in the Collection Account within one Business
Day following receipt the following payments and collections received or made by
it on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans, including
the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and the
interest portion of all Unscheduled Payments and all Prepayment
Premiums;
(iii)any amounts required to be deposited pursuant to Section 3.07(b), in
connection with net losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from an REO Account pursuant to Section
3.17(b) and all Net Insurance Proceeds and Net Liquidation Proceeds;
(v) any amounts received from Borrowers which represent recoveries of
Property Protection Expenses, to the extent not permitted to be
retained by the Servicer, Co-Servicer or Special Servicer as provided
herein;
(vi) any other amounts required by the provisions of this Agreement to be
deposited into the Collection Account by the Servicer, Co-Servicer or
Special Servicer, including, without limitation, proceeds of any
repurchase of a Mortgage Loan pursuant to Sections 2.03(d) and (e)
hereof; and
(vii) any Servicer Prepayment Interest Shortfalls.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges (subject to
Section 3.12 hereof), Assumption Fees, loan modification fees, loan service
transaction fees, extension fees, demand fees, beneficiary statement charges and
similar fees need not be deposited in the Collection Account by the Servicer or
the Co-Servicer and, to the extent permitted by applicable law, the Servicer,
the Co-Servicer or the Special Servicer, as applicable in accordance with
Section 3.12 hereof, shall be entitled to retain any such charges and fees
received with respect to the Mortgage Loans. In the event that the Servicer or
the Co-Servicer deposits in the Collection Account any amount not required to be
deposited therein, the Servicer or the Co-Servicer may at any time withdraw such
amount from the Collection Account.
(b) The Trustee shall establish and maintain the Distribution Account in
the name of the Trustee, in trust for the benefit of the Certificateholders and
the Trustee as the Holder of the Lower-Tier Regular Interests. The Distribution
Account shall be established and maintained as an Eligible Account.
(c) The Trustee shall establish and maintain the Upper-Tier Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall withdraw from the Distribution Account and deposit in the
Upper-Tier Distribution Account on or before such date the amount of Available
Funds (including P&I Advances) and Prepayment Premiums to be distributed in
respect of the Lower-Tier Regular Interests pursuant to Section 4.01(a)(i) and
Section 4.01(a)(ii) hereof on such date. Notwithstanding anything herein to the
contrary, the Upper-Tier Distribution Account may be maintained as a subaccount
of the Distribution Account; provided, that accounts shall be maintained in a
manner sufficient to identify the deposits thereto and withdrawals therefrom.
(d) Prior to the Servicer Remittance Date relating to any Collection Period
in which Default Interest is received, the Trustee shall establish and maintain
the Default Interest Distribution Account in the name of the Trustee in trust
for the benefit of the Holders of the Class V-1 Certificates. The Default
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before the Servicer Remittance Date related to each Distribution
Date, the Servicer and the Co-Servicer shall remit to the Trustee for deposit in
the Default Interest Distribution Account an amount equal to (i) the amount of
the aggregate Default Interest received during the preceding Collection Period,
minus (ii) any portions thereof withdrawn from the Collection Account pursuant
to clause (iii) of Section 3.06 (such amount, if any, the "Net Default Interest"
for such Distribution Date).
(e) Prior to the Servicer Remittance Date relating to any Collection Period
in which Excess Interest is received, the Trustee shall establish and maintain
the Excess Interest Distribution Account in the name of the Trustee in trust for
the benefit of the Holders of the Class V-2 Certificates. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account.
In accordance with the allocation priorities set forth in Section 3.28(d), on or
before the Servicer Remittance Date related to the applicable Distribution Date,
the Servicer and the Co-Servicer shall remit to the Trustee for deposit in the
Excess Interest Distribution Account an amount equal to the Excess Interest
received during the applicable Collection Period. Following the distribution of
Excess Interest to Certificateholders on the first Distribution Date after which
there are no longer any Mortgage Loans outstanding which pursuant to their terms
could pay Excess Interest, the Trustee shall terminate the Excess Interest
Distribution Account.
(f) Prior to the Servicer Remittance Date relating to any Collection Period
in which any Repurchase Return of Premium Amount is received, the Trustee shall
establish and maintain the Repurchase Price Return of Premium Distribution
Account in the name of the Trustee in trust for the benefit of the Holders of
the Class PS-1 Certificates. The Repurchase Price Return of Premium Distribution
Account shall be established and maintained as an Eligible Account. In
accordance with the allocation priorities set forth in Section 3.28(d), on or
before the Servicer Remittance Date related to the applicable Distribution Date,
the Servicer and the Co-Servicer shall remit to the Trustee for deposit in the
Repurchase Price Return of Premium Distribution Account an amount equal to the
Repurchase Return of Premium Amount received during the applicable Collection
Period. Following the distribution of such amount to Certificateholders on the
first Distribution Date after which there are no longer any Mortgage Loans
outstanding which pursuant to their terms could pay Pre-Lock Out Return of
Premium Amount, the Trustee shall terminate the Repurchase Price Return of
Premium Distribution Account.
(g) Prior to the Servicer Remittance Date relating to any Collection Period
in which Post-Lock Out Return of Premium Amount is received, the Trustee shall
establish and maintain the Post-Lock Out Return of Premium Distribution Account
in the name of the Trustee in trust for the benefit of the Depositor. The
Post-Lock Out Return of Premium Distribution Account shall be established and
maintained as an Eligible Account. In accordance with the allocation priorities
set forth in Section 3.28(d), on or before the Servicer Remittance Date related
to the applicable Distribution Date, the Servicer and the Co-Servicer shall
remit to the Trustee for deposit in the Post-Lock Out Return of Premium
Distribution Account an amount equal to the Post-Lock Out Return of Premium
Amount received during the applicable Collection Period. Following the
distribution of Post-Lock Out Return of Premium Amount to the Depositor on the
first Distribution Date after which there are no longer any Mortgage Loans
outstanding which pursuant to their terms could pay Post-Lock Out Return of
Premium Amount, the Trustee shall terminate the Post-Lock Out Return of Premium
Distribution Account.
(h) Funds in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Default Interest Distribution Account, the
Excess Interest Distribution Account, the Repurchase Price Return of Premium
Distribution Account and the Post Lock-Out Return of Premium Distribution
Account may be invested in Permitted Investments in accordance with the
provisions of Section 3.07. The Servicer and the Co-Servicer shall give written
notice to the Trustee of the location and account number of the Collection
Account and shall notify the Trustee in writing prior to any subsequent change
thereof.
SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Servicer may make withdrawals from the Collection Account only as
described below (the order set forth below not constituting an order of priority
for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account, the
Default Interest Distribution Account, the Interest Reserve Account,
Excess Interest Distribution Account, the Repurchase Price Return of
Premium Distribution Account and the Post Lock-Out Return of Premium
Distribution Account, the amounts required to be deposited in the
Distribution Account, the Default Interest Distribution Account, the
Interest Reserve Account, the Excess Interest Distribution Account,
the Repurchase Price Return of Premium Distribution Account and the
Post-Lock Out Return of Premium Distribution Account pursuant to
Sections 4.06, 3.05(c), 3.05(d), 3.27(a), 3.05(e), 3.05(f) and
3.05(g);
(ii) to pay or reimburse the Trustee, the Fiscal Agent, the Servicer, the
Co-Servicer, the Special Servicer and, with respect to Co-Lender Split
Notes, the Other Servicer or Other Special Servicer in accordance with
Section 3.32 hereof for Advances (provided, that the Trustee and the
Fiscal Agent shall have priority with respect to such payment or
reimbursement), the Servicer's right to reimburse any such Person
pursuant to this clause (ii) being limited to (x) any collections on
or in respect of the particular Mortgage Loan or REO Property with
respect to which such Advance was made, (y) with respect to P&I
Advances, any Subordinate Class Advance Amounts with respect to the
related Distribution Date as provided in Section 4.06(d), or (z) any
other amounts in the Collection Account in the event that such
Advances, and any Property Advances made by the Lead Lender with
respect to the Other Note required to be, but not reimbursed by the
Other Trust Fund as provided in Section 3.32 or any Advance Interest
Amount have been deemed to be Nonrecoverable Advances or are not
reimbursed from recoveries in respect of the related Mortgage Loan or
REO Property after a Final Recovery Determination;
(iii)(A) to pay to the Servicer, the Co-Servicer, the Trustee or the
Fiscal Agent the Advance Interest Amount relating to P&I Advances and
(B) to pay to the Servicer, Co-Servicer, Special Servicer, Trustee or
Fiscal Agent any Advance Interest Amounts not relating to any P&I
Advances, in each case, first, out of any collected Default Interest
(provided that in the case of both (A) and (B), the Trustee and the
Fiscal Agent shall have priority with respect to such payments);
(iv) to pay on or before each Servicer Remittance Date to the Servicer, the
Co-Servicer and the Special Servicer, as applicable, as compensation,
the aggregate unpaid Servicing Compensation and Special Servicing
Compensation (if any), as applicable, in respect of the immediately
preceding month, to be paid, in the case of the Servicing Fee, from
interest received on the related Mortgage Loan, and to pay from time
to time to the Servicer or the Co-Servicer in accordance with Section
3.07(b) any interest or investment income earned on funds deposited in
the Collection Account (the Servicer and the Co-Servicer may rely on a
certification of the Special Servicer as to amounts of Special
Servicing Compensation to be withdrawn pursuant to this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee
Fee in respect of the immediately preceding month to be paid from
interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the
appropriate Mortgage Loan Seller or other Originator, as the case may
be, with respect to each Mortgage Loan or REO Property that has
previously been purchased or repurchased by it pursuant to Section
2.03(d), Section 2.03(e), Section 3.18 or Section 9.01, all amounts
received thereon during the related Collection Period and subsequent
to the date as of which the amount required to effect such purchase or
repurchase was determined;
(vii)to the extent not reimbursed or paid pursuant to any other clause of
this Section 3.06, to reimburse or pay the Servicer, the Co-Servicer,
the Trustee, the Special Servicer, the Depositor or the Fiscal Agent,
as applicable, for unpaid Servicing Fees, Special Servicing
Compensation and other unpaid items incurred by such Person pursuant
to the second sentence of Section 3.07(c), Section 3.08(a) and (b),
Section 3.10, Section 3.12(e), Section 3.17(a), (b) and (c), Section
3.18(a), the fourth paragraph of Section 3.22, Section 6.03, Section
7.04, Section 8.01(c)(v), Section 8.05(d) or Section 10.07, or any
other provision of this Agreement pursuant to which such Person is
entitled to reimbursement or payment from the Trust Fund, in each case
only to the extent reimbursable under such Section, it being
acknowledged that this clause (vii) shall not be deemed to modify the
substance of any such Section, including the provisions of such
Section that set forth the extent to which one of the foregoing
Persons is or is not entitled to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined by the
Trustee to be necessary to pay any applicable federal, state or local
taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under
the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any amount deposited into the Collection Account that was
not required to be deposited therein; and
(x) to clear and terminate the Collection Account pursuant to Section
9.01.
The Servicer and the Co-Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection Account pursuant to subclauses
(i)-(vii) above.
The Servicer and the Co-Servicer shall pay to the Trustee, the Fiscal
Agent, the Co-Servicer or the Special Servicer from the Collection Account (to
the extent permitted by clauses (i)-(vii) above) amounts permitted to be paid to
the Trustee, the Fiscal Agent, the Co-Servicer or the Special Servicer
therefrom, promptly upon receipt of a certificate of a Responsible Officer of
the Trustee or the Fiscal Agent or a certificate of a Servicing Officer, as
applicable, describing the item and amount to which such Person is entitled. The
Servicer and the Co-Servicer may rely conclusively on any such certificate and
shall have no duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer, the Co-Servicer and
the Servicer shall in all cases have a right prior to the Certificateholders to
any funds on deposit in the Collection Account from time to time for the
reimbursement or payment of the Servicing Compensation (including investment
income), or Trustee Fees, Special Servicing Compensation, Advances, Advance
Interest Amounts, their respective expenses hereunder to the extent such fees
and expenses are to be reimbursed or paid from amounts on deposit in the
Collection Account pursuant to this Agreement (and to have such amounts paid
directly to third party contractors for any invoices approved by the Trustee,
the Servicer, the Co-Servicer or the Special Servicer, as applicable) and any
federal, state or local taxes imposed on either the Upper-Tier REMIC or
Lower-Tier REMIC.
SECTION 3.07. Investment of Funds in the Collection Account, the
REO Account, the Lock-Box Accounts, the Cash Collateral
Accounts, the Interest Reserve Account and the Reserve
Accounts.
(a) The Servicer or the Co-Servicer, as applicable (or with respect to any
REO Account, the Special Servicer, or with respect to the Interest Reserve
Account, CCA) may direct any depository institution maintaining the Collection
Account, any Borrower Accounts (subject to the second succeeding sentence), the
Interest Reserve Account and any REO Account (each, for purposes of this Section
3.07, an "Investment Account"), to invest the funds in such Investment Account
in one or more Permitted Investments that bear interest or are sold at a
discount, and that mature, unless payable on demand, no later than the Business
Day preceding the date on which such funds are required to be withdrawn from
such Investment Account pursuant to this Agreement. Any direction by the
Servicer, the Co-Servicer, the Special Servicer or CCA, to invest funds on
deposit in an Investment Account shall be in writing and shall certify that the
requested investment is a Permitted Investment which matures at or prior to the
time required hereby or is payable on demand. In the case of any Escrow Account,
Lock-Box Account, Cash Collateral Account or Reserve Account (the "Borrower
Accounts"), the Servicer or the Co-Servicer, as applicable, shall act upon the
written request of the related Borrower or Manager to the extent the Servicer or
the Co-Servicer, as applicable, is required to do so under the terms of the
respective Mortgage Loan or related documents, provided that in the absence of
appropriate written instructions from the related Borrower or Manager meeting
the requirements of this Section 3.07, the Servicer or the Co-Servicer, as
applicable, shall have no obligation to, but will be entitled to, direct the
investment of funds in such accounts in Permitted Investments. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such) or in the name of a nominee of the Trustee.
The Trustee shall have sole control (except with respect to investment direction
which shall be in the control of the Servicer or the Co-Servicer, as applicable,
(or CCA, with respect to the Interest Reserve Account, or the Special Servicer,
with respect to any REO Accounts), as an independent contractor to the Trust
Fund) over each such investment and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Trustee or its
agent (which shall initially be the Servicer or the Co-Servicer, as applicable),
together with any document of transfer, if any, necessary to transfer title to
such investment to the Trustee or its nominee. The Trustee shall have no
responsibility or liability with respect to the investment directions of the
Servicer, the Co-Servicer, the Special Servicer, CCA, any Borrower or Manager or
any losses resulting therefrom, whether from Permitted Investments or otherwise.
The Servicer and the Co-Servicer shall have no responsibility or liability with
respect to the investment directions of CCA, the Special Servicer, any Borrower
or Manager or each other or any losses resulting therefrom, whether from
Permitted Investments or otherwise. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Servicer or the Co-Servicer, as applicable (or the Special Servicer
or CCA, as applicable), shall:
(x) 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 (1)
all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Servicer (or the Special Servicer the Co-Servicer
or CCA, as applicable) that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited in any
Investment Account shall be for the benefit of the Servicer (except with respect
to the investment of funds deposited in (i) any Borrower Account, which shall be
for the benefit of the related Borrower to the extent required under the
Mortgage Loan or applicable law, (ii) any REO Account, which shall be for the
benefit of the Special Servicer, (iii) the Interest Reserve Account, which shall
be for the benefit of CCA or (iv) any Investment Account held by the
Co-Servicer, which shall be for the benefit of Co-Servicer) and, if held in the
Collection Account or REO Account shall be subject to withdrawal by the
Servicer, the Co-Servicer or the Special Servicer, as applicable, in accordance
with Section 3.06 or Section 3.17(b), as applicable, and if held in the Interest
Reserve Account, shall be subject to withdrawal by CCA pursuant to written
instructions. The Servicer (or with respect to any REO Account, the Special
Servicer, or with respect to any Investment Account held by the Co-Servicer, the
Co-Servicer, or with respect to the Interest Reserve Account, CCA) shall deposit
from its own funds into the Collection Account, any REO Account or the Interest
Reserve Account, as applicable, the amount of any loss incurred in respect of
any such Permitted Investment immediately upon realization of such loss;
provided, however, that the Servicer, the Co-Servicer, Special Servicer, or CCA,
as applicable, may reduce the amount of such payment to the extent it forgoes
any investment income in such Investment Account otherwise payable to it. The
Servicer or the Co-Servicer, as applicable, shall also deposit from its own
funds in any Borrower Account the amount of any loss incurred in respect of
Permitted Investments, except to the extent that amounts are invested for the
benefit of the Borrower under the terms of the Mortgage Loan or applicable law.
(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 or, if the Servicer or the Co-Servicer, as applicable,
maintains the account in which such Permitted Investment is held, the Servicer
or the Co-Servicer, as applicable, in the name of the Trustee may, and upon the
request of Holders of Certificates representing greater than 50% of the
Percentage Interests of any Class shall, take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate proceedings. In the event the Trustee takes any such
action, the Trust Fund shall pay or reimburse the Trustee for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in connection therewith. In the event that the Trustee does not take any
such action, the Servicer, or the Co-Servicer, as applicable, may take such
action at its own cost and expense, except with respect to any Borrower Account
as to which the related Borrower directs investments, which shall be at the
expense of the Trust Fund.
SECTION 3.08. Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage.
(a) The Servicer or Co-Servicer, as applicable, on behalf of the Trustee,
as mortgagee, shall cause the related Borrower to maintain, to the extent
required by each Mortgage Loan (other than REO Mortgage Loans), and if the
Borrower does not so maintain, shall itself maintain (subject to the provisions
of this Agreement concerning Nonrecoverable Advances) to the extent the Trustee
as mortgagee has an insurable interest and to the extent available at
commercially reasonable rates, (i) fire and hazard insurance with extended
coverage on the related Mortgaged Property in an amount which is at least equal
to the lesser of (A) one hundred percent (100%) of the then "full replacement
cost" of the improvements and equipment (excluding foundations, footings and
excavation costs), without deduction for physical depreciation, and (B) the
outstanding principal balance of the related Mortgage Loan or such greater
amount as is necessary to prevent any reduction in such policy by reason of the
application of co-insurance and to prevent the Trustee thereunder from being
deemed a co-insurer and provided such policy shall include a "replacement cost"
rider, (ii) insurance providing coverage against 18 months of rent interruptions
or such longer period or with such extended period endorsement as provided in
the related Mortgage or other loan document and (iii) such other insurance as is
required in the related Mortgage Loan. All insurance referred to above for
Mortgaged Properties shall be from a Qualified Insurer. The Special Servicer
shall maintain fire and hazard insurance with extended coverage on each REO
Property (subject to the provisions of this Agreement concerning Nonrecoverable
Advances) in an amount which is at least equal to one hundred percent (100%) of
the then "full replacement cost" of the improvements and equipment (excluding
foundations, footings and excavation costs), without deduction for physical
depreciation. If the Special Servicer does not maintain the insurance described
in the preceding sentence or the required flood insurance described below, the
Servicer or Co-Servicer, as applicable, shall, as soon as practicable after
receipt of notice of such failure, maintain such insurance, and if the Servicer
or Co-Servicer does not maintain such insurance, the insurance required in the
first sentence of this Section 3.08(a) or the required flood insurance described
below (if the related Borrower fails to maintain such insurance), the Trustee
shall, as soon as practicable after receipt of notice of such failure, maintain
such insurance and if the Trustee does not maintain such insurance, the Fiscal
Agent shall do so, provided that, in each such case, such obligation will be
subject to the provisions of this Agreement concerning Nonrecoverable Advances.
The Special Servicer shall maintain, with respect to each REO Property (i)
public liability insurance providing such coverage against such risks as the
Special Servicer determines, consistent with the related Mortgage and the
Servicing Standard, to be in the best interests of the Trust Fund, (ii)
insurance providing coverage against 24 months of rent interruptions and (iii)
such other insurance as was required pursuant to the terms of the related
Mortgage Loan. All insurance for an REO Property shall be from a Qualified
Insurer. Any amounts collected by the Servicer, the Co-Servicer or the Special
Servicer under any such policies (other than amounts required to be applied to
the restoration or repair of the related Mortgaged Property or amounts to be
released to the Borrower in accordance with the terms of the related Mortgage)
shall be deposited into the Collection Account pursuant to Section 3.05, subject
to withdrawal pursuant to Section 3.06. Any cost incurred by the Servicer,
Co-Servicer, Special Servicer, Trustee or Fiscal Agent in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no other additional insurance other than flood
insurance or earthquake insurance subject to the conditions set forth below is
to be required of any Borrower or to be maintained by the Servicer or
Co-Servicer other than pursuant to the terms of the related Mortgage and
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
(other than an REO Property) is located in a federally designated special flood
hazard area, and the Servicer or Co-Servicer, in performing its obligations
hereunder in accordance with the Servicing Standard, is aware of such location,
the Servicer or Co-Servicer, as applicable, shall use its reasonable best
efforts to cause the related Borrower to maintain, to the extent required by
each Mortgage Loan, and if the related Borrower does not so maintain, will
itself obtain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) flood insurance in respect thereof. Such flood
insurance shall be in an amount equal to the lesser of (i) the unpaid principal
balance of the related Mortgage Loan and (ii) the maximum amount of such
insurance required by the terms of the related Mortgage and as is available for
the related property under the national flood insurance program (assuming that
the area in which such property is located is participating in such program). If
an REO Property (i) is located in a federally designated special flood hazard
area or (ii) is related to a Mortgage Loan pursuant to which earthquake
insurance was in place at the time of origination and continues to be available
at commercially reasonable rates, the Special Servicer will obtain (subject to
the provisions of this Agreement concerning Nonrecoverable Advances) flood
insurance and/or earthquake insurance in respect thereof providing substantially
the same coverage as described in the preceding sentences or, with respect to
earthquake insurance, in the amount required by the Mortgage Loan or, if not
specified, in-place at origination. If at any time during the term of this
Agreement a recovery under a flood or fire and hazard insurance policy in
respect of an REO Property is not available but would have been available if
such insurance were maintained thereon in accordance with the standards applied
to Mortgaged Properties described herein, the Special Servicer shall (subject to
the provisions of this Agreement concerning Nonrecoverable Advances) either (i)
immediately deposit into the Collection Account from its own funds the amount
that would have been recovered or (ii) apply to the restoration and repair of
the property from its own funds the amount that would have been recovered, if
such application would be consistent with the Servicing Standard; provided,
however, that the Special Servicer shall not be responsible for any shortfall in
insurance proceeds resulting from an insurer's refusal or inability to pay a
claim. In the case of any insurance otherwise required to be maintained pursuant
to this Section that is not being so maintained because the Servicer, the
Co-Servicer or the Special Servicer, as applicable, has determined that it is
not available at commercially reasonable rates, the Servicer, the Co-Servicer or
the Special Servicer, as applicable, shall deliver an Officers' Certificate to
the Trustee and each Rating Agency which details the steps that were taken in
seeking such insurance and the factors which led to the determination that such
insurance was not so available. Costs to the Servicer, Co-Servicer or Special
Servicer of maintaining insurance policies pursuant to this Section 3.08 shall
be paid by the Servicer, Co-Servicer or Special Servicer as a Property Advance
and shall be reimbursable to the Servicer, Co-Servicer or Special Servicer with
interest at the Advance Rate, which reimbursement may be effected under Section
3.06(ii) or (vii).
Each of the Servicer or Co-Servicer, as applicable (or the Special
Servicer, with respect to the Specially Serviced Mortgage Loans and REO
Properties), agrees to prepare and present, on behalf of itself, the Trustee and
the Certificateholders, claims under each related insurance policy maintained
pursuant to this Section 3.08(a) in a timely fashion in accordance with the
terms of such policy and to take such reasonable steps as are necessary to
receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name (i) the Trustee or
(ii) the Servicer or Co-Servicer, as applicable, or the Special Servicer, on
behalf of the Trustee as the mortgagee, as loss payee.
Any determination made by the Servicer, the Co-Servicer or the Special
Servicer that insurance is not commercially reasonably available shall be
subject to confirmation by Fitch and Moody's 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 and Moody's, provided that the Servicer, the Co-Servicer and the Special
Servicer shall not be required to maintain such insurance while Fitch and
Moody's consider such determination.
(b) (I) If the Servicer, Co-Servicer or the Special Servicer, as
applicable, obtains and maintains a blanket insurance policy insuring against
fire and hazard losses on all of the Mortgaged Properties (other than REO
Properties) as to which the related Borrower has not maintained insurance
required by the related Mortgage Loan or on all of the REO Properties, as the
case may be, it shall conclusively be deemed to have satisfied its respective
obligations concerning the maintenance of insurance coverage set forth in
Section 3.08(a). Any such blanket insurance policy shall be maintained with a
Qualified Insurer. A blanket insurance policy may contain a deductible clause,
in which case the Servicer, Co-Servicer or the Special Servicer, as applicable,
shall, in the event that (i) there shall not have been maintained on the related
Mortgaged Property a policy otherwise complying with the provisions of Section
3.08(a), and (ii) there shall have been one or more losses which would have been
covered by such a policy had it been maintained, immediately deposit into the
Collection Account from its own funds the amount not otherwise payable under the
blanket policy because of such deductible clause to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard. In
connection with its activities as Servicer, Co-Servicer or Special Servicer
hereunder, as applicable, the Servicer, Co-Servicer or the Special Servicer,
respectively, agrees to prepare and present, on behalf of itself, the Trustee
and Certificateholders, claims under any such blanket policy which it maintains
in a timely fashion in accordance with the terms of such policy and to take such
reasonable steps as are necessary to receive payment or permit recovery
thereunder.
(II) If the Servicer, Co-Servicer or Special Servicer, as applicable,
causes any Mortgaged Property or REO Property to be covered by a master force
placed insurance policy, such policy shall be issued by a Qualified Insurer and
provide no less coverage in scope and amount for such Mortgaged Property or REO
Property than the insurance required to be maintained pursuant to Section
3.08(a) in which case the Servicer, Co-Servicer or Special Servicer shall
conclusively be deemed to have satisfied its respective obligations to maintain
insurance pursuant to Section 3.08(a). Such policy may contain a deductible
clause, in which case the Servicer, the Co-Servicer or the Special Servicer, as
applicable, shall, in the event that (i) there shall not have been maintained on
the related Mortgaged Property or REO Property a policy otherwise complying with
the provisions of Section 3.08(a), and (ii) there shall have been one or more
losses which would have been covered by such a policy had it been maintained,
immediately deposit into the Collection Account from its own funds the amount
not otherwise payable under such policy because of such deductible to the extent
that any such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) The Servicer, the Co-Servicer and the Special Servicer shall maintain a
fidelity bond in the form and amount that would meet the servicing requirements
of prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer, the Co-Servicer and the Special
Servicer each shall be deemed to have complied with this provision if one of its
respective Affiliates has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Servicer, the
Co-Servicer and the Special Servicer, as applicable. In addition, the Servicer,
the Co-Servicer and the Special Servicer shall keep in force during the term of
this Agreement a policy or policies of insurance covering loss occasioned by the
errors and omissions of its officers and employees in connection with its
obligations to service the Mortgage Loans hereunder in the form and amount that
would meet the servicing requirements of prudent institutional commercial
mortgage lenders and loan servicers with the Trustee named as loss payee. The
Servicer, the Co-Servicer or the Special Servicer shall cause each and every
sub-servicer for it to maintain, or cause to be maintained by any agent or
contractor servicing any Mortgage Loan on behalf of such sub-servicer, a
fidelity bond and an errors and omissions insurance policy which satisfy the
requirements for the fidelity bond and the errors and omissions policy to be
maintained by the Servicer, the Co-Servicer or the Special Servicer, as
applicable, pursuant to this Section 3.08(c). All fidelity bonds and policies of
errors and omissions insurance obtained under this Section 3.08(c) shall be
issued by a Qualified Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the
sale or other transfer of an interest in the related
Mortgaged Property, or
(ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in
connection with any such sale or other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer, Co-Servicer or Special Servicer, as applicable, on behalf of the Trust
Fund shall not be required to enforce such due-on-sale clause and in connection
therewith shall not be required to (x) accelerate payments thereon or (y)
withhold its consent to such an assumption to the extent permitted under the
terms of the related Mortgage Loan if (A) such provision is not exercisable
under applicable law or such exercise is reasonably likely to result in
meritorious legal action by the Borrower or (B) the Servicer, Co-Servicer or
Special Servicer, as applicable, determines, in accordance with the Servicing
Standard, that granting such consent would be likely to result in an equal or
greater recovery, on a present value basis (discounting at the related Mortgage
Rate) than would enforcement of such clause. If the Servicer, Co-Servicer or
Special Servicer, as applicable, determines that granting of such consent would
likely result in an equal or greater recovery or such provision is not legally
enforceable, the Servicer, Co-Servicer or Special Servicer, as applicable, is
authorized to take or enter into an assumption agreement from or with the Person
to whom the related Mortgaged Property has been or is about to be conveyed, and
to release the original Borrower from liability upon the Mortgage Loan and
substitute the new Borrower as obligor thereon, provided, that (a) the credit
status of the prospective new Borrower is in compliance with the Servicer's,
Co-Servicer's or Special Servicer's, as applicable, regular commercial mortgage
origination or servicing standards and criteria and the terms of the related
Mortgage and (b) the Servicer, Co-Servicer or Special Servicer has received
written confirmation from each of Fitch and Moody's that such assumption or
substitution would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates; provided,
however, that if the Stated Principal Balance of such Mortgage Loan is less than
the lesser of (x) 5% of the total aggregate Stated Principal Balances of the
Mortgage Loans and (y) $30,000,000, and is not one of the ten largest Mortgage
Loans in the Trust Fund, such written confirmation shall not be required from
any of the Rating Agencies. In connection with each such assumption or
substitution entered into by the Special Servicer, the Special Servicer shall
give prior notice thereof to the Servicer. The Servicer, Co-Servicer or Special
Servicer, as applicable, shall notify the Trustee that any such assumption or
substitution agreement has been completed by forwarding to the Trustee (with a
copy to the Servicer or the Co-Servicer, if applicable) the original copy of
such agreement, which copies shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part thereof.
(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the
creation of any lien or other encumbrance on the
related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the
creation of any such lien or other encumbrance on the
related Mortgaged Property,
then the Servicer, Co-Servicer or Special Servicer, as applicable, on behalf of
the Trust Fund, shall not be required to enforce such due-on-encumbrance clause
and in connection therewith will not be required to (x) accelerate the payments
on the related Mortgage Loan or (y) withhold its consent to such lien or
encumbrance, if the Servicer, Co-Servicer or Special Servicer, as applicable,
(A) determines, in accordance with the Servicing Standard, that such consent
would be in the best interests of the Trust Fund and (B) receives prior written
confirmation from each of Fitch and Moody's that granting such consent would
not, in and of itself, cause a downgrade, qualification or withdrawal of any of
the then-current ratings assigned to the Certificates.
(c) Nothing in this Section 3.09 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.09, none of the Servicer, the Co-Servicer or the
Special Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or the related
Note, other than pursuant to Section 3.30.
(e) With respect to any Mortgage Loan which permits release of Mortgaged
Properties through defeasance:
(i) In the event such Mortgage Loan requires that the Servicer or the
Co-Servicer, as applicable, on behalf of the Trustee purchase the
required U.S. government obligations, the Servicer or the Co-Servicer,
as applicable, shall purchase (upon receipt of sufficient funds from
the Borrower exercising such right of defeasance) such obligations in
accordance with the terms of such Mortgage Loan; provided, that the
Servicer or the Co-Servicer, as applicable, shall not accept the
amounts paid by the related Borrower to effect defeasance until
acceptable U.S. government obligations have been identified.
(ii) Except as provided in Section 3.09(a)(i) or (ii), in the event that
such Mortgage Loan permits the assumption of the obligations of the
related Borrower by a successor mortgagor, prior to permitting such
assumption and to the extent not inconsistent with such Mortgage Loan,
the Servicer or the Co-Servicer, as applicable, shall obtain written
confirmation from each Rating Agency that such assumption would not,
in and of itself, cause a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates.
(iii)To the extent not inconsistent with such Mortgage Loan, the Servicer
or the Co-Servicer, as applicable, shall require an Opinion of Counsel
to the related Borrower (which shall be an expense of the related
Borrower) to the effect that the Trustee has a first priority security
interest in the defeasance deposit and the U.S. government obligations
and the assignment thereof is valid and enforceable; such opinion,
together with any other certificates or documents to be required in
connection with such defeasance shall be in form and substance
acceptable to each Rating Agency.
(iv) To the extent not inconsistent with the Mortgage Loan, the Servicer or
the Co-Servicer, as applicable, shall require a certificate at the
related Borrower's expense from an Independent certified public
accountant certifying that the U.S. government obligations comply with
the requirements of the related Loan Agreement or Mortgage.
(v) Prior to permitting release of any Mortgaged Properties through
defeasance, to the extent not inconsistent with the related Mortgage
Loan, the Servicer or the Co-Servicer, as applicable, 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 the then-current ratings assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged Property through
defeasance, if the related Mortgage Loan so requires and provides for
the related Borrower to pay the cost thereof, the Servicer or the
Co-Servicer, as applicable, shall require an Opinion of Counsel of the
related Borrower to the effect that such release will not cause either
the Upper-Tier REMIC or Lower-Tier 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.
(f) Prior to the defeasance of any Mortgaged Property, the Depositor shall
establish a special purpose entity (the "New SPE"), which shall assume any
defeased Mortgage Loans and whose organizational documents shall provide that
its purpose is limited to same. The Depositor shall also provide an Opinion of
Counsel with respect to nonconsolidation of the New SPE. The Servicer or
Co-Servicer, as applicable, shall exercise its right under the Loan Documents to
require the Borrower to transfer to the New SPE any defeased Mortgage Loans,
which assignment shall be accepted by the New SPE.
(g) In connection with any defeasance, to the extent not inconsistent with
the Loan Documents, on behalf of the Borrower, the Servicer or the Co-Servicer,
as applicable, shall use the cash payment to (1) purchase noncallable
obligations of the U.S. Treasury that are sufficient to timely meet all
scheduled mortgage payments without reinvestment and (2) pay all related
expenses. The Servicer or the Co-Servicer, as applicable, shall provide to the
Rating Agencies trade confirmations or other appropriate evidence that
establishes that the projection of cash flows in the certificate referred to in
subsection (e)(iv) above are based upon the correct maturity dates and interest
rates of the securities actually purchased.
(h) The Servicer or the Co-Servicer, as applicable, may release the related
Mortgaged Property for any Note that is fully defeased, provided it has
confirmed that the requirements set forth above have been satisfied.
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage
Loans.
(a) Contemporaneously with the earliest of (i) the effective date of any
(A) modification of a Mortgage Rate, principal balance or amortization terms of
any Mortgage Loan, or any other term of a Mortgage Loan, (B) extension of the
Maturity Date of a Mortgage Loan as described below in Section 3.30(c), or (C)
consent to the release of any Mortgaged Property from the lien of the related
Mortgage other than pursuant to the terms of the related Mortgage Loan, (ii) the
occurrence of any Appraisal Reduction Event, or (iii) the date on which the
Special Servicer, consistent with the Servicing Standard, requests that an
Updated Appraisal be obtained, the Servicer or the Co-Servicer, as applicable
(after consultation with the Special Servicer, if the Co-Servicer and the
Special Servicer are different parties) (in connection with (ii) above) or the
Special Servicer (in connection with (i) and (iii) above), shall obtain an
Updated Appraisal (or a letter which updates an existing appraisal which is less
than two years old), the cost of which will constitute a Servicing Advance.
(b) Upon the occurrence of a material default under a Specially Serviced
Mortgage Loan, except as otherwise specifically provided in Section 3.09(a) and
(b), the Special Servicer may, consistent with the Servicing Standard,
accelerate such Specially Serviced Mortgage Loan and commence a foreclosure or
other acquisition with respect to the related Mortgaged Property or Properties,
provided, that the Special Servicer determines that such acceleration and
foreclosure are more likely to produce a greater recovery to Certificateholders
on a present value basis (discounting at the related Mortgage Rate) than would a
waiver of such default or an extension or modification in accordance with the
provisions of Section 3.30 hereof. In connection with any foreclosure or other
acquisition as to which the Special Servicer is not required to act under
Instructions from the Directing Holders, the Servicer or the Co-Servicer, as
applicable, shall pay the costs and expenses in any such proceedings as an
Advance unless the Servicer determines, in its good faith judgment, that such
Advance would constitute a Nonrecoverable Advance. The Servicer or the
Co-Servicer, as applicable, shall be entitled to reimbursement of Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence to the
extent permitted by Section 3.06(ii), (iii) and (vii). If the Special Servicer
is acting pursuant to Instructions, the cost and expenses in any such proceeding
shall be paid by the Directing Holders or the Special Servicer, without
reimbursement therefor by the Trust Fund.
(c) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state or locality where the
Mortgaged Property is located, the Special Servicer shall not be required to
pursue a deficiency judgment against the related Borrower or any other liable
party if the laws of the state or locality do not permit such a deficiency
judgment after a non-judicial foreclosure or if the Special Servicer determines,
in its best judgment, that the likely recovery if a deficiency judgment is
obtained will not be sufficient to warrant the cost, time, expense and/or
exposure of pursuing the deficiency judgment and such determination is evidenced
by an Officers' Certificate delivered to the Trustee.
(d) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee (which shall not include the
Special Servicer) or a separate trustee or co-trustee on behalf of the Trustee
as holder of the Lower-Tier Regular Interests and Certificateholders.
Notwithstanding any such acquisition of title and cancellation of the related
Mortgage Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be
considered to be an REO Mortgage Loan held in the Trust Fund until such time as
the related REO Property shall be sold by the Trust Fund and shall be reduced
only by collections net of expenses. Consistent with the foregoing, for purposes
of all calculations hereunder, so long as such Mortgage Loan shall be considered
to be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note
and, for purposes of determining the Stated Principal Balance thereof,
the related amortization schedule in effect at the time of any such
acquisition of title shall remain in effect; and
(ii) Subject to Section 1.02(b), Net REO Proceeds received in any month
shall be applied to amounts that would have been payable under the
related Note in accordance with the terms of such Note. In the absence
of such terms, Net REO Proceeds shall be deemed to have been received
first in payment of the accrued interest (not including Excess
Interest) that remained unpaid on the date that the related REO
Property was acquired by the Trust Fund; second in respect of the
delinquent principal installments that remained unpaid on such date;
and thereafter, Net REO Proceeds received in any month shall be
applied to the payment of installments of principal and accrued
interest on such Mortgage Loan deemed to be due and payable in
accordance with the terms of such Note and such amortization schedule
until such principal has been paid in full and then to Excess Interest
and other amounts due under such Mortgage Loan. If such Net REO
Proceeds exceed the Monthly Payment then payable, the excess shall be
treated as a Principal Prepayment received in respect of such Mortgage
Loan.
(e) Notwithstanding any provision herein to the contrary, the Special
Servicer shall not acquire for the benefit of the Trust Fund any personal
property pursuant to this Section 3.10 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 for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion of
Counsel (which opinion shall be an expense of the Lower-Tier REMIC) to
the effect that the holding of such personal property by the
Lower-Tier REMIC will not cause the imposition of a tax on the
Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding.
(f) Notwithstanding any provision to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund) to the effect that the holding of such partnership interest
or other equity interest by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at
any time that any Certificate is outstanding.
(g) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or 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
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an environmental assessment report prepared by an Independent Person
who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable environmental
laws or, if not, after consultation with an environmental consultant,
that it would be in the best economic interest of the Trust Fund to
take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property relating
to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal,
state or local law or regulation, or that, if any such Hazardous
Materials are present for which such action could be required, after
consultation with an environmental consultant, it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section 3.10.
(h) The environmental assessment contemplated by Section 3.10(g) shall be
prepared within three months of the determination that such assessment is
required by any Independent Person who regularly conducts environmental audits
for purchasers of commercial property where the Mortgaged Property is located,
as determined by the Special Servicer in a manner consistent with the Servicing
Standard. The Servicer or the Co-Servicer, as applicable, shall advance the cost
of preparation of such environmental assessments unless the Servicer determines,
in its good faith judgment, that such Advance would be a Nonrecoverable Advance.
The Special Servicer shall provide such information as reasonably requested by
the Servicer or the Co-Servicer, as applicable (provided that the Co-Servicer
and the Special Servicer are not the same party), to determine whether such
Advance, if made, would be a Nonrecoverable Advance. The Servicer shall be
entitled to reimbursement of Advances (with interest at the Advance Rate) made
pursuant to the preceding sentence in the manner set forth in Section 3.06.
(i) If the Special Servicer determines pursuant to Section 3.10(g)(i) that
a Mortgaged Property is not in compliance with applicable environmental laws but
that it is in the best economic interest of the Trust Fund to take such actions
as are necessary to bring such Mortgaged Property in compliance therewith, or if
the Special Servicer determines pursuant to Section 3.10(g)(ii) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund to take such
action with respect to the containment, clean-up or remediation of Hazardous
Materials affecting such Mortgaged Property as is required by law or regulation,
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund, but only if the Trustee has mailed notice
to the Holders of the Regular Certificates of such proposed action, which notice
shall be prepared by the Special Servicer, and only if the Trustee does not
receive, within 30 days of such notification, instructions from the Holders of
greater than 50% of the aggregate Voting Rights of such Classes directing the
Special Servicer not to take such action. Notwithstanding the foregoing, if the
Special Servicer reasonably determines that it is likely that within such 30-day
period irreparable environmental harm to such Mortgage Property would result
from the presence of such Hazardous Materials and provides a prior written
statement to the Trustee setting forth the basis for such determination, then
the Special Servicer may take such action to remedy such condition as may be
consistent with the Servicing Standard. None of the Trustee, the Servicer, the
Co-Servicer or the Special Servicer shall be obligated to take any action or not
take any action pursuant to this Section 3.10(i) at the direction of the
Certificateholders unless the Certificateholders agree to indemnify the Trustee,
the Servicer, the Co-Servicer and the Special Servicer with respect to such
action or inaction. The Special Servicer shall advance the cost of any such
compliance, containment, clean-up or remediation unless the Special Servicer
determines, in its good faith judgment, that such Advance would constitute a
Nonrecoverable Advance.
(j) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed or
regarding any cancellation of indebtedness with respect to any Mortgage Loan.
The Special Servicer shall deliver a copy of any such report to the Servicer,
the Co-Servicer and the Trustee.
(k) The costs of any Updated Appraisal obtained pursuant to this Section
3.10 shall be paid by the Servicer or the Co-Servicer as an Advance and shall be
reimbursable from the Collection Account (or from the Collateral Account to the
extent Advances are otherwise reimbursable therefrom pursuant to this Section
3.10).
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer or the Co-Servicer of a notification that payment in full has been
escrowed in a manner customary for such purposes, the Servicer or Co-Servicer,
as applicable, shall immediately notify the Trustee or the Custodian by a
certification (which certification shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Collection Account pursuant to Section 3.05 have
been or will be so deposited) of a Servicing Officer and shall request delivery
to it of the Mortgage File. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Trust Fund.
From time to time upon request of the Servicer, Co-Servicer or Special
Servicer and delivery to the Trustee and the Custodian of a Request for Release,
the Trustee shall promptly cause the Custodian to release the Mortgage File (or
any portion thereof) designated in such Request for Release to the Servicer,
Co-Servicer or Special Servicer, as applicable. Upon return of the foregoing to
the Custodian, or in the event of a liquidation or conversion of the Mortgage
Loan into an REO Property, receipt by the Trustee of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation which are
required to be deposited into the Collection Account or Distribution Account
have been so deposited, or that such Mortgage Loan has become an REO Property,
the Custodian shall deliver a copy of the Request for Release to the Servicer,
Co-Servicer or Special Servicer, as applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower 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. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, each of the Servicer and
the Co-Servicer shall be entitled to the Servicing Fee with respect to each
Mortgage Loan serviced by it, which fee shall be payable from amounts on deposit
in the Collection Account as set forth in Section 3.06(iv). The Servicer's and
the Co-Servicer's rights to their respective portions of the Servicing Fee may
not be transferred in whole or in part except in connection with the transfer of
all or part of the Servicer's or the Co-Servicer's responsibilities and
obligations under this Agreement. In addition, each of the Servicer and the
Co-Servicer shall be entitled to receive, as additional Servicing Compensation,
(i) with respect to the Servicer, any interest or other income earned on amounts
on deposit in the Collection Account maintained by the Servicer, with respect to
the Co-Servicer, any interest or other income earned on amounts on deposit in
the Collection Account maintained by the Co-Servicer and, with respect to the
Servicer and Co-Servicer, investment income earned on amounts on deposit in
certain Reserve Accounts (to the extent consistent with the related Mortgage
Loan) with respect to the Mortgage Loans serviced by it (to the extent such
interest or other income is not required to be paid to the related Borrower
pursuant to the terms of the related Mortgage Loan or applicable law) and (ii)
to the extent permitted by applicable law and the related Mortgage Loans (and
not otherwise payable to the Special Servicer pursuant to Section 3.12(b)), any
late payment charges, Assumption Fees, loan modification fees, extension fees,
loan service transaction fees, beneficiary statement charges or similar items
(but not including any Prepayment Premiums), in each case to the extent received
and not required to be deposited or retained in the Collection Account pursuant
to Section 3.05; provided, however, that the Servicer and the Co-Servicer shall
not be entitled to apply or retain any amounts as additional compensation, any
late payment charges with respect to any Mortgage Loan with respect to which a
default or event of default thereunder has occurred and is continuing unless and
until such default or event of default has been cured and all delinquent amounts
(including any Default Interest) due with respect to such Mortgage Loan have
been paid. The Servicer or the Co-Servicer, as applicable, shall also be
entitled to receive, for any Specially Serviced Mortgage Loan, 50% of any
modification or Assumption Fees for any such Mortgage Loan for which the consent
of, or review by, the Servicer or the Co-Servicer is specifically required
pursuant to the terms hereunder, including, without limitation, Section 3.28(l),
Section 3.30(c) or Section 3.30(b)(viii) (or if the Special Servicer requests
the Servicer's or the Co-Servicer's consent). The Trustee shall, to the extent
provided in Sections 3.06(iv) and 3.07(b), withdraw and pay to the Servicer on
each Distribution Date from the Distribution Account, Upper-Tier Distribution
Account, Default Interest Distribution Account, the Excess Interest Distribution
Account, the Repurchase Price Return of Premium Distribution Account and the
Post Lock-Out Return of Premium Distribution Account any interest or other
income earned on deposits therein. Notwithstanding the foregoing, the Servicing
Fee and investment income earned on any Principal Prepayments during the related
Collection Period and due to the Servicer or the Co-Servicer, as applicable, on
any Distribution Date shall be reduced as provided in the definition of Servicer
Prepayment Interest Shortfalls applicable to the Servicer or the Co-Servicer,
respectively.
As compensation for its activities hereunder on each Distribution Date, the
Trustee shall be entitled with respect to each Mortgage Loan to the Trustee Fee,
which shall be a portion of the Servicing Fee with respect to each Mortgage Loan
and which shall be payable from amounts on deposit in the Distribution Account
as set forth in Section 3.06(v). The Trustee shall pay the routine fees and
expenses of the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent. The Trustee's rights to the Trustee Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Trustee's responsibilities and obligations under this Agreement.
Except as otherwise provided herein, each of the Servicer and the
Co-Servicer shall pay all expenses incurred by it in connection with its
servicing activities hereunder, including all fees of any sub-servicers retained
by it. Except as otherwise provided herein, the Trustee shall pay all expenses
incurred by it in connection with its activities hereunder.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled with respect to each Specially Serviced Mortgage Loan to the
Special Servicing Compensation, which shall be payable from amounts on deposit
in the Collection Account as set forth in Section 3.06(iv). The Special
Servicer's rights to 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. In addition,
the Special Servicer shall be entitled to receive, as Special Servicing
Compensation, (i) to the extent permitted by applicable law and the related Loan
Documents, any Assumption Fees and extension or other fees relating to any
Specially Serviced Mortgage Loan or with respect to servicing activities
performed by the Special Servicer on any Specially Serviced Mortgage Loan, and,
for any modification, extension or other action by the Special Servicer with
respect to any Specially Serviced Mortgage Loan for which the consent of, or
review by, the Servicer or the Co-Servicer is required, 50% of any Assumption
Fees and extension or other fees payable by the related Borrower in connection
therewith; and (ii) any interest or other income earned on deposits in the REO
Accounts. Notwithstanding the foregoing, in the event the Special Servicer is,
or is an Affiliate of, the Holder of Certificates representing greater than 50%
of the Percentage Interests of the most subordinate Class of Sequential
Certificates then outstanding (determined as provided below), the Special
Servicer shall be entitled to receive a Special Servicing Fee equal to .25% of
the Stated Principal Balance of each Specially Serviced Mortgage Loan. If a
review by, or the consent of, the Servicer is not specifically required pursuant
to the terms hereof including, without limitation, Section 3.28(l), Section
3.30(c) or Section 3.30(b)(viii) (and provided the Special Servicer does not
request the Servicer's or the Co-Servicer's consent) in connection with an
extension, modification or other action, the Special Servicer shall be entitled
to the full amount of any Assumption Fees and extension or other fees. For
purposes of determining whether the Special Servicer is entitled to full
compensation hereunder, the Class A-1A, Class A-1B and Class PS-1 Certificates,
collectively, and the Class B-6 and Class B-6H Certificates, together, will, in
each case, be treated as one class.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) The Servicer, Co-Servicer, Special Servicer and Trustee shall be
entitled to reimbursement from the Trust Fund for the costs and expenses
incurred by them in the performance of their duties under this Agreement which
are "unanticipated expenses incurred by the REMIC" within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(iii). Such expenses shall include,
by way of example and not by way of limitation, environmental assessments,
Updated Appraisals and appraisals in connection with foreclosure, the fees and
expenses of any administrative or judicial proceeding and expenses expressly
identified as reimbursable in Section 3.06(vii).
(d) No provision of this Agreement or of the Certificates shall require the
Servicer, the Co-Servicer, the Special Servicer, the Trustee or the Fiscal Agent
to expend or risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder or thereunder, or in the
exercise of any of their rights or powers, if, in the good faith business
judgment of the Servicer, Co-Servicer, Special Servicer, Trustee or Fiscal
Agent, as the case may be, repayment of such funds would not be ultimately
recoverable from late payments, Net Insurance Proceeds, Net Liquidation Proceeds
and other collections on or in respect of the Mortgage Loans, or from adequate
indemnity from other assets comprising the Trust Fund against such risk or
liability.
If the Servicer, the Co-Servicer, the Special Servicer or the Trustee
receives a request or inquiry from a Borrower, any Certificateholder or any
other Person the response to which would, in the Servicer's or the Trustee's
good faith business judgment require the assistance of Independent legal counsel
or other consultant to the Servicer, the Co-Servicer, the Special Servicer or
the Trustee, the cost of which would not be an expense of the Trust Fund
hereunder, then the Servicer, the Co-Servicer, the Special Servicer or the
Trustee, as the case may be, shall not be required to take any action in
response to such request or inquiry unless the Borrower or such
Certificateholder or such other Person, as applicable, makes arrangements for
the payment of the Servicer's, the Co-Servicer's, the Special Servicer's or the
Trustee's expenses associated with such counsel (including, without limitation,
posting an advance payment for such expenses) satisfactory to the Servicer, the
Co-Servicer, the Special Servicer or the Trustee, as the case may be, in its
sole discretion. Unless such arrangements have been made, the Servicer, the
Co-Servicer, the Special Servicer or the Trustee, as the case may be, shall have
no liability to any Person for the failure to respond to such request or
inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account
Statements.
(a) The Servicer and the Co-Servicer with respect to the Equity Loans,
shall deliver to the Trustee and the Special Servicer, no later than 2:00 p.m.
Central time on the Business Day prior to the Servicer Remittance Date prior to
each Distribution Date, the Servicer Remittance Report with respect to the
related Distribution Date (which shall include, without limitation, the amount
of Available Funds for such related Collection Period) including a written
statement of anticipated P&I Advances for the related Distribution Date. The
Servicer's and the Co-Servicer's responsibilities under this Section 3.13(a)
with respect to REO Loans shall be subject to the satisfaction of the Special
Servicer's obligations under Section 3.26.
(b) For so long as the Servicer or the Co-Servicer makes deposits into and
withdrawals from the Collection Account, not later than fifteen days after each
Distribution Date, the Servicer and the Co-Servicer shall forward to the Trustee
and the Fiscal Agent a statement prepared by the Servicer or the Co-Servicer
setting forth the status of the Collection Account as of the close of business
on the last Business Day of the related Collection Period and showing the
aggregate amount of deposits into and withdrawals from the Collection Account of
each category of deposit specified in Section 3.05 and each category of
withdrawal specified in Section 3.06 for the related Collection 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 and the Co-Servicer solely relating to the Mortgage Loans and
the performance of its duties hereunder.
(c) No later than 12:00 noon Central time on the Servicer Remittance Date,
the Servicer, and the Co-Servicer with respect to the Equity Loans, shall
deliver or cause to be delivered to the Trustee the following reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties),
providing the required information as of the Due Date: (i) a Comparative
Financial Status Report, (ii) a Delinquent Loan Status Report; (iii) an
Historical Loss Estimate Report; (iv) an Historical Loan Modification Report;
(v) an REO Status Report; (vi) CSSA Reports; and (vii) a notice (with a copy to
the Rating Agencies) if during the preceding calendar month the Servicer, or the
Co-Servicer with respect to the Equity Loans, becomes aware that the rating then
assigned to any credit tenant or related guarantor with respect to a Credit
Lease Loan is reduced, withdrawn or placed on credit watch, together with a
Watch List, as more fully set forth in Section 3.13(e). Such reports shall be
presented in writing and on a computer readable medium reasonably acceptable to
the Trustee. The information that pertains to Specially Serviced Mortgage Loans
and REO Properties reflected in such reports shall be based solely upon the
reports delivered by the Special Servicer to the Servicer or the Co-Servicer, as
applicable, at least one Business Day prior to the related Servicer Remittance
Date in the form required by Section 3.13(f) or shall be provided by means of
such reports so delivered by the Special Servicer to the Servicer or the
Co-Servicer, as applicable, in the form so required. Absent manifest error, the
Servicer and the Co-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, the Co-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 (and such
reports may include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required to be made in
the preparation of such reports as the Servicer, the Co-Servicer or the Special
Servicer deems appropriate).
(d) The Servicer and the Co-Servicer, as applicable, shall deliver or cause
to be delivered to the Trustee, and promptly after its receipt thereof, the
Trustee shall deliver to the Depositor, each Underwriter, the Luxembourg Paying
Agent and each Rating Agency and, upon request, shall make available to the
Certificateholders and the Special Servicer, 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 or Co-Servicer, as applicable:
(i) At least annually by June 30th, commencing on June 30, 1999, with
respect to each Mortgage Loan and REO Mortgage Loan (to the extent
prepared by and received from the Special Servicer in the case of any
Specially Serviced Mortgage Loan or REO Mortgage Loan), an Operating
Statement Analysis for the related Mortgaged Property or REO Property
as of the end of the preceding calendar year, together with copies of
the operating statements and rent rolls (but only to the extent the
related Borrower is required by the Mortgage to deliver, or otherwise
agrees to provide such information and, with respect to operating
statements and rent rolls for Specially Serviced Mortgage Loans and
REO Properties, only to the extent requested by the Special Servicer)
for the related Mortgaged Property or REO Property as of the end of
the preceding fiscal year. The Servicer or the Co-Servicer, as
applicable, shall use its best reasonable efforts to obtain said
annual operating statements and rent rolls with respect to each of the
Mortgage Loans other than Specially Serviced Mortgage Loans or REO
Mortgage Loans, which efforts shall include a letter sent to the
related Borrower each quarter (followed up with telephone calls)
requesting such annual operating statements and rent rolls until they
are received to the extent such action is consistent with applicable
law and the terms of the Mortgage Loans.
(ii) Within thirty days after receipt by the Servicer or the Co-Servicer,
as applicable (or the Special Servicer in the case of a Specially
Serviced Mortgage Loan or REO Property), of any annual operating
statements with respect to any Mortgaged Property or REO Property (to
the extent prepared by and received from the Special Servicer in the
case of any Specially Serviced Mortgage Loan or REO Property), an NOI
Adjustment Worksheet for such Mortgaged Property (with the annual
operating statements attached thereto as an exhibit) (and such reports
may include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required to
be made in the preparation of such reports as the Servicer, the
Co-Servicer or the Special Servicer deems appropriate).
The Servicer or the Co-Servicer, as applicable, shall maintain one Operating
Statement Analysis report for each Mortgaged Property and REO Property (to the
extent prepared by and received from the Special Servicer in the case of any REO
Property or any Mortgaged Property constituting security for a Specially
Serviced Mortgage Loan). The Operating Statement Analysis report for each
Mortgaged Property (other than any such Mortgaged Property which is REO Property
or constitutes security for a Specially Serviced Mortgage Loan) is to be updated
by the Servicer or the Co-Servicer, as applicable, and such updated report
delivered to the Trustee within thirty days after receipt by the Servicer or the
Co-Servicer, as applicable, of updated operating statements for such Mortgaged
Property. The Servicer or the Co-Servicer, as applicable, will use the
"Normalized" column from the NOI Adjustment Worksheet to update the Operating
Statement Analysis report and will use any operating statements received with
respect to any Mortgaged Property (other than any such Mortgaged Property which
is REO Property or constitutes security for a Specially Serviced Mortgage Loan)
to update the Operating Statement Analysis report for such Mortgaged Property,
such updates to be completed and copies thereof sent to the Trustee within
thirty days after receipt of the necessary information (and such reports may
include any reasonable disclaimers with respect to information provided by third
parties or with respect to assumptions required to be made in the preparation of
such reports as the Servicer, the Co-Servicer or the Special Servicer deems
appropriate).
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Servicer or the Co-Servicer, as applicable, the information
required pursuant to this Section 3.13(d) with respect to Specially Serviced
Mortgage Loans and REO Mortgage Loans on or before June 10th of each year,
commencing on June 10, 1999, and within 15 days after its receipt of any
operating statement for any related Mortgaged Property or REO Property.
(e) No later than 12:00 noon Central time on the Servicer Remittance Date,
beginning in December 1998, the Servicer or the Co-Servicer, as applicable,
shall prepare and deliver to the Trustee and the Special Servicer, a Watch List
of all Mortgage Loans that the Servicer or the Co-Servicer, respectively, has
determined are in jeopardy of becoming Specially Serviced Mortgage Loans. For
this purpose, Mortgage Loans that are in jeopardy of becoming Specially Serviced
Mortgage Loans shall include, without limitation: (i) Mortgage Loans having a
current Debt Service Coverage Ratio that is 80% or less of the trailing
twelve-month Debt Service Coverage Ratio as of the Cut-off Date (as stated on
Annex A to the Prospectus) or having a current trailing twelve-month Debt
Service Coverage Ratio that is less than 1.05x (other than Credit Lease Loans),
(ii) Mortgage Loans as to which any required inspection of the related Mortgaged
Property conducted by the Servicer or the Co-Servicer, as applicable, indicates
a problem that the Servicer or the Co-Servicer, as applicable, determines can
reasonably be expected to materially adversely affect the cash flow generated by
such Mortgaged Property, (iii) Mortgage Loans which have come to the Servicer's
or the Co-Servicer's, as applicable, attention in the performance of its duties
under this Agreement (without any expansion of such duties by reason hereof)
that (A) any tenant occupying 25% or more of the space in the related Mortgaged
Property has vacated (without being replaced by a comparable tenant and lease)
or been the subject of bankruptcy or similar proceedings or (B) relate to a
borrower or an affiliate that is the subject of a bankruptcy or similar
proceeding, (iv) Mortgage Loans that are at least one Collection Period
delinquent in payment, and (v) Mortgage Loans that are within 60 days of
maturity (and such reports may include any reasonable disclaimers with respect
to information provided by third parties or with respect to assumptions required
to be made in the preparation of such reports as the Servicer, the Co-Servicer,
or the Special Servicer deems appropriate).
The Special Servicer shall report to the Servicer or the Co-Servicer, as
applicable, any of the foregoing events promptly upon the Special Servicer
having knowledge of such event. In addition, in connection with their servicing
of the Mortgage Loans, the Servicer, the Co-Servicer and the Special Servicer
shall provide to each other and to the Trustee written notice of any event that
comes to their knowledge with respect to a Mortgage Loan or REO Property that
the Servicer, the Co-Servicer or the Special Servicer, respectively, determines,
in accordance with Servicing Standards, would have a material adverse effect on
such Mortgage Loan or REO Property, which notice shall include an explanation as
to the reason for such material adverse effect.
(f) At least one Business Day prior to each Servicer Remittance Date, the
Special Servicer shall deliver, or cause to be delivered, to the Servicer, the
Co-Servicer (to the extent the Co-Servicer and Special Servicer are different
parties) and the Rating Agencies and, upon the request of any of the Trustee,
the Depositor or the Underwriters, to such requesting party, the following
reports with respect to the Specially Serviced Mortgage Loans (and, if
applicable, the related REO Properties), providing the required information as
of the Due Date: (i) a Delinquent Loan Status Report; (ii) an Historical Loss
Estimate Report; (iii) an Historical Loan Modification Report; (iv) an REO
Status Report; and (v) Comparative Financial Status Reports with respect to all
Specially Serviced Mortgage Loans; and (vi) CSSA Reports. Such reports shall be
presented in writing and on a computer readable magnetic medium (and such
reports may include any reasonable disclaimers with respect to information
provided by third parties or with respect to assumptions required to be made in
the preparation of such reports as the Servicer, the Co-Servicer or the Special
Servicer deems appropriate).
(g) The Special Servicer shall deliver or cause to be delivered to the
Servicer, the Co-Servicer (to the extent the Co-Servicer and Special Servicer
are different parties) and the Rating Agencies and, upon the request of any of
the Trustee, the Depositor or the Underwriters, to such requesting party, the
following materials, in each case to the extent that such materials or the
information on which they are based have been received by the Special Servicer:
(i) Annually, on or before June 10 of each year, commencing with June 10,
1999, with respect to each Specially Serviced Mortgage Loan and REO
Mortgage Loan, an Operating Statement Analysis for the related
Mortgaged Property or REO Property as of the end of the preceding
calendar year, together with copies of the operating statements and
rent rolls for the related Mortgaged Property or REO Property as of
the end of the preceding calendar year. The Special Servicer shall use
its best reasonable efforts to obtain said annual operating statements
and rent rolls with respect to each Mortgaged Property constituting
security for a Specially Serviced Mortgage Loan and each REO Property,
which efforts shall include a letter sent to the related 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) Within 20 days of receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property relating
to a Specially Serviced Mortgage Loan, or at least six months of
operating information with respect to any REO Property, an NOI
Adjustment Worksheet for such Mortgaged Property or REO Property (with
the annual operating statements attached thereto as an exhibit).
The Special Servicer shall maintain one Operating Statement Analysis report for
each Mortgaged Property securing a Specially Serviced Mortgage Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is a REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Servicer or the Co-Servicer, as applicable, within 20 days
after receipt by the Special Servicer of updated operating statements for each
such Mortgaged Property. In addition, the Special Servicer shall provide each
such report to the Servicer in the then-applicable CSSA format. The Special
Servicer will use the "Normalized" column from the NOI Adjustment Worksheet to
update the Operating Statement Analysis report and will use any operating
statements received with respect to any Mortgaged Property which constitutes
security for a Specially Serviced Mortgage Loan or is a REO Property to update
the Operating Statement Analysis report for such Mortgaged Property, such
updates to be completed and copies thereof sent to the Servicer within 20 days
after receipt of the necessary information.
(h) Intentionally Left Blank.
(i) The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by the
Servicer, the Co-Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Servicer, the Co-Servicer and the Special Servicer (the "reporting
person") each shall deliver to the Trustee, the Depositor and to the Rating
Agencies on or before March 15 of each year, beginning with March 15, 1999, an
Officer's Certificate stating, as to each signatory thereof, (i) that a review
of the activities 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 material
obligations under this Agreement throughout such year (or such shorter period),
or, if there has been a 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 3.15. Annual Independent Public Accountants' Servicing
Report.
On or before March 15 of each year, beginning with March 15, 1999, the
Servicer, the Co-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 to the Rating Agencies, to the effect that such firm
has examined certain documents and records relating to the servicing of the
similar mortgage loans under similar agreements for the prior calendar year and
that, on the basis of such examination conducted substantially in compliance
with generally accepted auditing standards and the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FHLMC, such servicing has been conducted in compliance with similar agreements
except for such significant exceptions or errors in records that, in the opinion
of such firm, generally accepted auditing standards and the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FHLMC require it to report, in which case such exceptions and
errors shall be so reported. 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 3.22 hereof. With respect to
any electronic version of an Accountant's Statement prepared by the reporting
person, the reporting person shall receive written confirmation from the related
accountants that such electronic version is a conformed copy of the original
Accountant's Statement.
SECTION 3.16. Access to Certain Documentation.
The Servicer, Co-Servicer and Special Servicer shall provide to any
Certificateholders that are federally insured financial institutions, the
Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder is subject,
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Federal Reserve Board, FDIC, OTS or any such governmental or
regulatory body, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the
Servicer, Co-Servicer or Special Servicer. Nothing in this Section 3.16 shall
require the Servicer, Co-Servicer and Special Servicer to violate, in the
judgment of the Servicer, Co-Servicer or Special Servicer, as applicable, any
applicable law prohibiting disclosure of information with respect to the
Borrowers, and the failure of the Servicer, Co-Servicer or Special Servicer to
provide access as provided in this Section 3.16 as a result of such law shall
not constitute a breach of this Section 3.16.
SECTION 3.17. Title and Management of REO Properties and REO
Account Properties.
(a) In the event that title to any Mortgaged Property is acquired for the
benefit of Certificateholders in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee, on behalf of the
Certificateholders and itself as Holder of the Lower-Tier Regular Interests. The
Special Servicer, on behalf of the Trust Fund, shall dispose of any REO Property
prior to the close of the third calendar year beginning after the year in which
the Trust Fund acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless (i) the Special Servicer on behalf of the
Lower-Tier REMIC has applied for an extension of such period pursuant to
Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special
Servicer shall sell such REO Property within the applicable extension period or
(ii) the Special Servicer seeks and subsequently receives an Opinion of Counsel
(which opinion shall be an expense of the Trust Fund), addressed to the Special
Servicer and Trustee, to the effect that the holding by the Trust Fund of such
REO Property for an additional specified period will not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (determined without regard to the exception applicable
for purposes of Section 860D(a) of the Code) at any time that any Certificate is
outstanding, in which event such period shall be extended by such additional
specified period subject to any conditions set forth in such Opinion of Counsel.
The Special Servicer, on behalf of the Trust Fund, shall dispose of any REO
Property held by the Trust Fund prior to the last day of such period (taking
into account extensions) by which such REO Property is required to be disposed
of pursuant to the provisions of the immediately preceding sentence in a manner
provided under Section 3.18 hereof. The Special Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for the
purpose of its prompt disposition and sale in a manner which does not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a)).
(b) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the manner
in which the Special Servicer manages and operates similar property owned or
managed by the Special Servicer or any of its Affiliates, all on such terms and
for such period as the Special Servicer deems to be in the best interests of
Certificateholders, and, in connection therewith, the Special Servicer shall
agree to the payment of management fees that are consistent with general market
standards. Consistent with the foregoing, the Special Servicer shall cause or
permit to be earned with respect to such REO Property any "net income from
foreclosure property," within the meaning of Section 860G(c) of the Code, which
is subject to tax under the REMIC Provisions only if it has determined, and has
so advised the Trustee in writing, that the earning of such income on a net
after-tax basis could reasonably be expected to result in a greater recovery on
behalf of Certificateholders than an alternative method of operation or rental
of such REO Property that would not be subject to such a tax. The Special
Servicer shall segregate and hold all revenues received by it with respect to
any REO Property separate and apart from its own funds and general assets and
shall establish and maintain with respect to any REO Property a segregated
custodial account (each, an "REO Account"), each of which shall be an Eligible
Account and shall be entitled "LaSalle National Bank, as Trustee, in trust for
Holders of CAPCO America Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D7, REO Account." The Special Servicer
shall be entitled to withdraw for its account any interest or investment income
earned on funds deposited in an REO Account to the extent provided in Section
3.07(b). The Special Servicer shall deposit or cause to be deposited in the REO
Account within one Business Day after receipt all revenues received by it with
respect to any REO Property (other than Liquidation Proceeds), and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property and for other Property Protection Expenses with
respect to such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO Property;
(ii) all real estate taxes and assessments in respect of any REO Property
that may result in the imposition of a lien thereon;
(iii)all costs and expenses reasonable and necessary to protect, maintain,
manage, operate, repair and restore any REO Property; and
(iv) any taxes imposed on the Upper Tier REMIC or Lower-Tier REMIC in
respect of net income from foreclosure property in accordance with
Section 4.05.
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above and the Special Servicer has provided
written notice of such shortfall to the Servicer or the Co-Servicer, as
applicable, at least five Business Days prior to the date that such amounts are
due, the Servicer or the Co-Servicer, as applicable, shall advance the amount of
such shortfall unless the Servicer or the Co-Servicer, as applicable,
determines, in its good faith judgment, that such Advance would be a
Nonrecoverable Advance; provided, however, the Special Servicer shall make
reasonable efforts to request Advances once in any 30 day period to satisfy all
such shortfalls. The Special Servicer shall reasonably cooperate with the
Servicer in providing any information required to determine whether an Advance
would be a Nonrecoverable Advance and the Servicer or the Co-Servicer, as
applicable, shall reasonably cooperate with the Special Servicer in providing
any information required to determine whether an Advance would be a
Nonrecoverable Advance. If the Servicer or the Co-Servicer, as applicable, does
not make any such Advance in violation of the immediately preceding sentence,
the Trustee shall make such Advance; and if the Trustee fails to make any such
Advance, the Fiscal Agent shall make such Advance, unless in either case, the
Trustee or the Fiscal Agent determines that such Advance would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent shall be entitled to
rely, conclusively, on any determination by the Servicer or the Co-Servicer, as
applicable, that an Advance, if made, would be a Nonrecoverable Advance. The
Trustee and the Fiscal Agent, in determining whether or not a proposed Advance
would be a Nonrecoverable Advance, shall be subject to the standards applicable
to the Servicer and the Co-Servicer hereunder. The Servicer, the Co-Servicer,
the Trustee or the Fiscal Agent, as applicable, shall be entitled to
reimbursement of such Advances (with interest at the Advance Rate) made pursuant
to the preceding sentence, to the extent set forth in Section 3.06. The Special
Servicer shall withdraw from each REO Account and remit to the Servicer for
deposit into the Collection Account on a monthly basis prior to or on the
related Due Date the Net REO Proceeds received or collected from each REO
Property, except that in determining the amount of such Net REO Proceeds, the
Special Servicer may retain in each REO Account reasonable reserves for repairs,
replacements and necessary capital improvements and other related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease, 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 ten percent of
the construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all
within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate any REO
Property on any date more than 90 days after its date of acquisition
by the Trust Fund, unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) 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.
The Special Servicer shall be required to contract with an Independent
Contractor (acceptable to each Rating Agency as evidenced by written
confirmation that contracting with such Independent Contractor would not, in and
of itself cause a downgrade, qualification or withdrawal of the then-current
ratings assigned to any Class of Certificates), the fees and expenses of which
shall be an expense of the Trust Fund and payable out of REO Proceeds, for the
operation and management of any REO Property, within 90 days of the Trust Fund's
acquisition thereof (unless the Special Servicer shall have provided the Trustee
with an Opinion of Counsel that the operation and management of any REO Property
other than through an Independent Contractor shall not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Code Section
860G(a)(8)) (which opinion shall be an expense of the Trust Fund), provided
that:
(i) the terms and conditions of any such contract shall
be reasonable and customary for the area and type of
property and shall not be inconsistent herewith;
(ii) any such contract shall require, or shall be
administered to require, that the Independent
Contractor pay all costs and expenses incurred in
connection with the operation and management of such
REO Property, including those listed above, and remit
all related revenues (net of such costs and expenses)
to the Special Servicer as soon as practicable, but
in no event later than 30 days following the receipt
thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b)
relating to any such contract or to actions taken
through any such Independent Contractor shall be
deemed to relieve the Special Servicer of any of its
duties and obligations to the Trust Fund or the
Trustee on behalf of the Certificateholders with
respect to the operation and management of any such
REO Property; and
(iv) 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.
(c) Promptly following any acquisition by the Trust Fund of an REO
Property, the Special Servicer shall obtain an Updated Appraisal thereof, but
only in the event that any Updated Appraisal with respect thereto is more than
12 months old, in order to determine the fair market value of such REO Property
and shall notify the Depositor, the Servicer, the Co-Servicer and the Trustee
hereto of the results of such appraisal. Any such appraisal shall be conducted
by an appraiser who is an MAI and the cost thereof shall be an expense of the
Trust Fund. The Special Servicer shall obtain a new Updated Appraisal or a
letter update every 12 months thereafter.
(d) When and as necessary, the Special Servicer shall deliver to the
Trustee a statement prepared by the Special Servicer setting forth the amount of
net income or net loss, as determined for federal income tax purposes, resulting
from the operation and management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
other amount not constituting Rents from Real Property in respect of, any REO
Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO
Properties.
(a) The Special Servicer may offer to sell to any Person any Specially
Serviced Mortgage Loan (other than a Split Loan as to which the Trustee is not
the Lead Lender) or any REO Property, or may offer to purchase any Specially
Serviced Mortgage Loan or any REO Property, if and when the Special Servicer
determines, consistent with the Servicing Standard, that no satisfactory
arrangements can be made for collection of delinquent payments thereon and such
a sale would be in the best economic interests of the Trust Fund. With respect
to any Specially Serviced Mortgage Loan or REO Property which the Special
Servicer has determined to sell in accordance with the foregoing, the Special
Servicer shall deliver to the Trustee an Officers' Certificate to the effect
that pursuant to the terms hereof, the Special Servicer has determined to sell
such Specially Serviced Mortgage Loan or REO Property in accordance with this
Section 3.18. The Special Servicer may then offer to sell to any Person any
Specially Serviced Mortgage Loan or any REO Property or, subject to the
following sentence, purchase any such Specially Serviced Mortgage Loan or REO
Property (in each case at the Repurchase Price therefor), but shall, in any
event, so offer to sell any REO Property no later than the time determined by
the Special Servicer to be sufficient to result in the sale of such REO Property
within the period specified in Section 3.17(a). The Special Servicer shall
deliver such Officers' Certificate and give the Trustee not less than ten
Business Days' prior written notice of its intention to sell any Specially
Serviced Mortgage Loan or REO Property, in which case the Special Servicer shall
accept the highest offer received from any Person for any Specially Serviced
Mortgage Loan or any REO Property in an amount at least equal to the Repurchase
Price therefor or, at its option, if it has received no offer at least equal to
the Repurchase Price therefor, purchase the Specially Serviced Mortgage Loan or
REO Property at the Repurchase Price.
In the absence of any such offer or purchase by the Special Servicer, the
Special Servicer shall accept the highest offer received from any Person that is
determined by the Special Servicer to be a fair price, as determined in
accordance with Section 3.18(b), for such Specially Serviced Mortgage Loan or
REO Property, if the highest offeror is a Person other than an Interested
Person, or is determined to be a fair price by the Trustee in accordance with
Section 3.18(b), if the highest offeror is an Interested Person; provided, that
the Trustee shall be entitled to engage, at the expense of the Trust Fund, an
Independent appraiser to determine whether the highest offer is a fair price
and, further provided, that if the highest offeror is an Interested Person such
offer shall not be accepted if it is less than the Repurchase Price, unless the
Rating Agencies have confirmed, in writing, that such acceptance will not, in
itself, result in the qualification, downgrade or withdrawal of the then-current
ratings assigned to the Certificates. Notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer or purchase any Specially Serviced Mortgage Loan or
any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest offer if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
offer would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower offer if it determines, in accordance with
the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the terms
offered by the prospective buyer making the lower offer are more favorable),
provided that the offeror is not an Affiliate of the Special Servicer. In the
event that 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 period referred to in Section 3.17(a)
with respect to such REO Property is approaching, the Special Servicer shall
seek an extension of such period in the manner described in Section 3.17(a);
provided, however, that the Special Servicer shall use its best efforts,
consistent with the Servicing Standard, to sell any REO Property prior to the
Rated Final Distribution Date.
(b) In determining whether any offer received from an Interested Person
represents a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Trustee shall engage, at the expense of the Trust Fund, an
Independent appraiser to determine whether the higher offer is a fair price, and
the Trustee may conclusively rely on the opinion of an Independent appraiser or
other Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a fair
price for any Specially Serviced Mortgage Loan or any REO Property, the Special
Servicer (if the highest offeror is not an Interested Person) or the Trustee
(or, if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into account,
as applicable, among other factors, any Updated Appraisal previously obtained,
the period and amount of any delinquency on the affected Specially Serviced
Mortgage Loan, the physical (including environmental) condition of the related
Mortgaged Property or such REO Property, the state of the local economy and the
Trust Fund's obligation to dispose of any REO Property within the time period
specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer shall
act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Depositor, the Servicer, the Co-Servicer, the
Operating Advisor, the Special Servicer or the Trust Fund (except that any
contract of sale and assignment and conveyance documents may contain customary
warranties of title, so long as the only recourse for breach thereof is to the
Trust Fund), and, if such sale is consummated in accordance with the duties of
the Special Servicer, the Servicer, the Co-Servicer, the Operating Advisor, the
Depositor, the Fiscal Agent and the Trustee pursuant to the terms of this
Agreement, no such Person who so performed shall have any liability to the Trust
Fund or any Certificateholder with respect to the purchase price therefor
accepted by the Special Servicer or, if the offeror is an Interested Person, the
Servicer (or the Trustee, if the Servicer is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the IRS at the time and
in the manner required by the Code.
(e) The proceeds of any sale after deduction of the expenses of such sale
incurred in connection therewith shall be promptly, and in any event within one
Business Day following receipt thereof, deposited in the Collection Account in
accordance with Section 3.05(a)(iv).
SECTION 3.19. Additional Obligations of the Servicer, Co-Servicer
and Special Servicer; Inspections.
(a) The Servicer or the Co-Servicer, as applicable (or, with respect to
Specially Serviced Mortgage Loans and REO Properties, the Special Servicer),
shall inspect or cause to be inspected (each at its own expense, respectively)
each Mortgaged Property (other than those Mortgaged Properties relating to
Co-Lender Split Notes) at such times and in such manner as are consistent with
the Servicing Standard, but in any event shall inspect each Mortgaged Property
with an Allocated Loan Amount of (A) $5,000,000 or more at least once every 12
months and (B) less than $5,000,000 at least once every 24 months, in each case
commencing in September 1999 (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 Mortgage Loan (i) becomes a Specially Serviced
Mortgage Loan, (ii) has a Debt Service Coverage Ratio of less than 1.0 (except
with respect to Credit Lease Loans), or with respect to Credit Lease Loans, the
related credit tenant has defaulted or (iii) is delinquent for 60 days, each
Mortgaged Property related to such Specially Serviced Mortgage Loan shall be
inspected by the Special Servicer as soon as practicable and thereafter at least
every 12 months for so long as such condition exists. The Servicer, Co-Servicer
or Special Servicer, as applicable, shall send to the Rating Agencies (providing
the Rating Agencies have not provided instructions to the contrary) within 20
days of completion, each inspection report. For any Mortgage Loans serviced by
the Servicer or Co-Servicer, Special Servicer may provide notice to the Servicer
or the Co-Servicer, as applicable, of its intent to inspect a Mortgaged
Property. Upon completion of the inspection of such Mortgaged Property, Special
Servicer shall provide a copy of the inspection report for such property to the
Servicer or the Co-Servicer, as applicable, and Servicer or the Co-Servicer, as
applicable, shall be relieved of its then-current obligation to inspect such
property.
The Special Servicer, at its own expense, shall have the right to inspect
Mortgaged Properties that are on the Watch List, provided that the Special
Servicer notifies the Servicer or the Co-Servicer, as applicable, prior to such
inspection and provides a copy of the inspection report for such property to the
Servicer or the Co-Servicer, as applicable.
(b) With respect to each Mortgage Loan, the Servicer or the Co-Servicer, as
applicable (or the Special Servicer, in the case of a Specially Serviced
Mortgage Loan), shall enforce the Trustee's rights with respect to the Manager
under the related Loan Documents and Management Agreement, provided, that, if
such right accrues under the related Loan Documents or Management Agreement only
because of the occurrence of the related Anticipated Repayment Date, if any, the
Servicer or Co-Servicer (or Special Servicer, if applicable) shall irrevocably
waive such right with respect to such date. In the event the Servicer or
Co-Servicer (or Special Servicer, as applicable) is entitled to terminate the
Manager, the Servicer or Co-Servicer (or Special Servicer, as applicable) shall
promptly give notice to the Trustee (who shall copy the Certificateholders), the
Originator, the Depositor and each Rating Agency.
SECTION 3.20. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and the Servicer and must be a corporation organized and doing
business under the laws of the United States of America or any state, having a
principal office and place of business in a state and city acceptable to the
Depositor and the Servicer, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities. The Trustee shall
serve as the initial Authenticating Agent and the Trustee hereby accepts such
appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee, the Depositor, the
Servicer and the Co-Servicer. The Trustee may at any time terminate the agency
of the Authenticating Agent by giving written notice of termination to the
Authenticating Agent, the Depositor and the Servicer and the Co-Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time the Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Servicer, the Co-Servicer
and the Depositor, and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
3.20.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. Any reasonable
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
SECTION 3.21. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee, by entering into a Custodial
Agreement. The Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000, shall have a long-term
debt rating of at least "BBB" from Fitch and "Baa2" from Moody's, unless the
Trustee shall have received prior written confirmation from each Rating Agency
that the appointment of such Custodian would not cause such Rating Agency to
withdraw, qualify or downgrade any of its then-current ratings on the
Certificates, and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File. Each Custodial Agreement may be amended only as
provided in Section 10.07. Any reasonable compensation paid to the Custodian
shall be an unreimbursable expense of the Trustee. The Trustee shall serve as
the initial Custodian. The Custodian shall maintain a fidelity bond in the form
and amount that are customary for securitizations similar to the securitization
evidenced by this Agreement, with the Trustee named as loss payee. The Custodian
shall be deemed to have complied with this provision if one of its respective
Affiliates has such fidelity bond coverage and, by the terms of such fidelity
bond, the coverage afforded thereunder extends to the Custodian. In addition,
the Custodian shall keep in force during the term of this Agreement a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its obligations hereunder in the
form and amount that are customary for securitizations similar to the
securitization evidenced by this Agreement, with the Trustee named as loss
payee. All fidelity bonds and policies of errors and omissions insurance
obtained under this Section 3.21 shall be issued by a Qualified Insurer, or
shall be otherwise acceptable to the Rating Agencies.
SECTION 3.22. Reports to the Securities and Exchange Commission;
Available Information.
(a) The Servicer shall prepare and sign, on behalf of the Depositor, any
and all Exchange Act Reports; provided, however, that (i) the Depositor shall
prepare, sign and file with the Commission the initial Form 8-K relating to the
Trust Fund and (ii) the Special Servicer shall prepare and sign on behalf of the
Depositor any Exchange Act Report which includes an Annual Compliance Report
relating to the Special Servicer. Each Exchange Act Report consisting of 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, NOI
Adjustment Worksheet, Watch List or report pursuant to Section 4.02(b) 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 exhibits 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 December 31 (or the nearest Business Day if such date is not
a Business Day) of the related year based on information provided by the
Trustee. The Trustee shall provide the Servicer and the Special Servicer with a
list of Certificateholders and Depository Participants holding Public
Certificates as of December 31 of the related year no later than two Business
Days prior to the date on which the Servicer or Special Servicer, as applicable,
is required to deliver the related Exchange Act Report to the Trustee. For each
Exchange Act Report, the Servicer or the Special Servicer, as applicable, shall
prepare (i) a manually-signed paper version of such report and (ii) an
electronic version of such report, which version shall be prepared as a
Microsoft Word for Windows file (or in such other format as the Trustee, the
Depositor and the Servicer or the Special Servicer may agree), provided, that,
with respect to the electronic version of each Exchange Act Report consisting of
a monthly Distribution Date Statement, the Servicer need only deliver an
electronic version of the related Form 8-K and the Trustee shall attach an
electronic version of the related monthly Distribution Date Statement thereto as
an exhibit. 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, NOI Adjustment Worksheet, 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. Electronic versions of each Exchange
Act Report shall be delivered to the Trustee on a computer diskette (delivered
by courier in packaging designed to shield such diskette from damage in
transmission) or by means of electronic data transfer system mutually agreed
upon by the Trustee and the Servicer or Special Servicer. The Trustee shall
forward each Exchange Act Report to the Depositor (and its attorneys,
Cadwalader, Wickersham & Taft, Attn: Anna H. Glick) in a manner and in a format
agreed upon by the Trustee and the Depositor. Manually-signed copies of each
Exchange Act Report shall be delivered to the Depositor to the attention of Nez
Mustafic (or such other Persons as are designated in writing by the Depositor),
with a copy to the Trustee.
If information for any Exchange Act Report is incomplete by the date on
which such report is required to be filed under the Exchange Act, 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 shall deliver an electronic version of such form to the Trustee
for forwarding to the Depositor as provided above. The Servicer or the Special
Servicer, as applicable, shall deliver the related report in electronic form to
the Trustee when such information is available and such completed report shall
be forwarded electronically by the Trustee to the Depositor.
None of the Servicer, the Special Servicer and the Trustee shall (i) file a
Form ID with respect to the Depositor or (ii) cause the Trust Fund to stop
filing reports, statements and information with the Commission pursuant to this
Section unless directed to do so by the Depositor or the continued reporting is
prohibited under the Exchange Act or any regulations thereunder. Upon the
written request of the Depositor, the Servicer shall file a Form 15 relating to
the Trust Fund with the Commission and send a copy thereof to the Trustee and
the Depositor.
The Trustee shall, at the written direction of the Depositor, solicit any
and all proxies of the Certificateholders whenever such proxies are required to
be solicited pursuant to the Exchange Act.
(b) Intentionally left blank.
(c) The Servicer and the Co-Servicer, or the Special Servicer with respect
to Specially Serviced Mortgage Loans shall, in accordance with such reasonable
rules and procedures as it 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 to
the extent the Servicer and the Co-Servicer, or the Special Servicer with
respect to Specially Serviced Mortgage Loans, deems such action to be necessary
or appropriate), also make available any additional information relating to the
Mortgage Loans, the Mortgaged Properties or the Borrowers, for review by the
Depositor, the Rating Agencies and any other Persons to whom the Servicer and
the Co-Servicer, or the Special Servicer with respect to Specially Serviced
Mortgage Loans believes such disclosure is appropriate, in each case except to
the extent doing so is prohibited by applicable law or by any related Loan
Documents related to a Mortgage Loan.
(d) The Servicer, the Co-Servicer and the Special Servicer shall make
available at their offices during normal business hours, or send to the
requesting party at the expense of each such requesting party (other than the
Rating Agencies and the Depositor) for review by the Depositor, the Trustee, the
Rating Agencies, any Certificateholder, any Person identified to the Servicer,
the Co-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, the Co-Servicer or the Special Servicer, as applicable, believes such
disclosure to be appropriate the following items: (i) all financial statements,
occupancy information, rent rolls, retail sales information, average daily room
rates and similar information received by the Servicer, the Co-Servicer or the
Special Servicer, as applicable, from each Borrower, (ii) the inspection reports
prepared by or on behalf of the Servicer, the Co-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 Mortgage Loan entered into by the Servicer, the Co-Servicer or the
Special Servicer, as applicable and (iv) any and all officer's certificates and
other evidence delivered to the Trustee and the Depositor to support the
Servicer's or the Co-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, the Co-Servicer or the Special Servicer,
as applicable, or the Trustee, as applicable, upon request. Nothing in this
Section 3.22(d) shall require the Servicer, the Co-Servicer or the Special
Servicer to violate, in the judgment of the Servicer, the Co-Servicer or the
Special Servicer, as applicable, any applicable law prohibiting disclosure of
information with respect to Borrower and the failure of the Servicer, the
Co-Servicer or the Special Servicer to provide access as provided under this
Section 3.22(d) as a result of such law shall not constitute a breach of this
Section.
(e) Notwithstanding the obligations of the Servicer and the Co-Servicer set
forth in the preceding provisions of this Section 3.22, the Servicer and the
Co-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, the Servicer or the Co-Servicer has determined that such
withholding is appropriate.
(f) 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 Co-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 Co-Servicer, the Special Servicer and the
Trustee 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, the Co-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 Co-Servicer, the Special Servicer
and the Trustee 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 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts.
The Servicer or the Co-Servicer, as applicable, shall administer each
Lock-Box Account, Cash Collateral Account, Escrow Account and Reserve Account in
accordance with the related Mortgage or Loan Agreement, Cash Collateral Account
Agreement or Lock-Box Agreement, if any.
SECTION 3.24. Property Advances.
(a) The Servicer or the Co-Servicer, as applicable (or, to the extent
provided in Section 3.24(b), the Trustee or the Fiscal Agent or to the extent
specifically provided for in this Agreement, the Special Servicer) shall make
any Property Advances as and to the extent otherwise required pursuant to the
terms hereof. For purposes of distributions to Certificateholders and
compensation to the Servicer, Co-Servicer, Special Servicer or Trustee, Property
Advances shall not be considered to increase the principal balance of any
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so provide.
(b) The Servicer and the Co-Servicer shall notify the Trustee and the
Fiscal Agent, and the Special Servicer shall notify the Servicer, the Trustee
and the Fiscal Agent, in writing promptly upon, and in any event within one
Business Day after, becoming aware that it will be unable to make any Property
Advance required to be made pursuant to the terms hereof, and in connection
therewith, shall set forth in such notice the amount of such Property Advance,
the Person to whom it will be paid, and the circumstances and purpose of such
Property Advance, and shall set forth therein information and instructions for
the payment of such Property Advance, and, on the date specified in such notice
for the payment of such Property Advance, or, if the date for payment has passed
or if no such date is specified, then within five Business Days following such
notice, the Trustee (or with respect to a Property Advance required to be made
by the Special Servicer, the Servicer or Co-Servicer, as applicable, and if the
Servicer or Co-Servicer, as applicable so fails, the Trustee), subject to the
provisions of Section 3.24(c), shall pay the amount of such Property Advance in
accordance with such information and instructions. If the Trustee fails to make
any Property Advance required to be made under this Section 3.24, the Fiscal
Agent, subject to the provisions of Section 3.24(c), shall make such Advance on
the same day the Trustee was required to make such Property Advance and,
thereby, the Trustee shall not be in default under this Agreement.
(c) None of the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent or
the Special Servicer shall be obligated to make a Property Advance as to any
Mortgage Loan or REO Property if the Servicer, the Co-Servicer, the Trustee, the
Fiscal Agent or the Special Servicer, as applicable, determines that such
Advance will be a Nonrecoverable Advance. The Trustee and the Fiscal Agent (or
the Servicer or Co-Servicer, as applicable, with respect to a Property Advance
required to be made by the Special Servicer) shall be entitled to rely,
conclusively, on any determination by the Servicer, Co-Servicer or Special
Servicer, as applicable, that a Property Advance, if made, would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent, in determining whether
or not a Property Advance previously made is, or a proposed Property Advance, if
made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Servicer and the Co-Servicer hereunder.
(d) The Servicer, the Co-Servicer, the Special Servicer, the Trustee and/or
the Fiscal Agent, as applicable, shall be entitled to the reimbursement of
Property Advances made by any of them to the extent permitted pursuant to
Section 3.06(ii) of this Agreement, together with any related Advance Interest
Amount in respect of such Property Advances, and the Servicer, Co-Servicer and
Special Servicer hereby covenant and agree to promptly seek and effect the
reimbursement of such Property Advances from the related Borrowers to the extent
permitted by applicable law and the related Loan Documents.
SECTION 3.25. Appointment of Special Servicer.
(a) AMRESCO Management, Inc. is hereby appointed as the initial Special
Servicer to service each Specially Serviced Mortgage Loan.
(b) Certificateholders representing greater than 50% of the Percentage
Interests of the most subordinate Class of Sequential Certificates then
outstanding (provided, however, that for the purpose of determining the most
subordinate Class, the Class A-1A, Class A-1B and Class PS-1 Certificates,
collectively, and the Class B-6 and Class B-6H Certificates, together, will, in
each case, be treated as one Class) shall be entitled to remove the Special
Servicer with or without cause and to appoint a successor Special Servicer,
provided that each Rating Agency confirms to the Trustee in writing that such
removal and appointment, in and of itself, would not cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to any Class of
Certificates. If there is a Special Servicer Event of Default, the Special
Servicer shall be removed and replaced pursuant to Sections 7.01(c) and 7.02.
(c) The appointment of any such successor Special Servicer, shall not
relieve the Servicer, the Co-Servicer, the Trustee or the Fiscal Agent of their
respective obligations to make Advances as set forth herein; provided, however,
the Servicer and the Co-Servicer shall not be liable for any actions or any
inaction of such successor Special Servicer. Any termination fee payable to the
terminated Special Servicer (and it is acknowledged that there is no such fee
payable in the event of a termination of the Servicer as Special Servicer or in
the event of a termination for breach of this Agreement) shall be paid by the
Certificateholders so terminating the Special Servicer and shall not in any
event be an expense of the Trust Fund.
(d) No termination of the Special Servicer and appointment of a successor
Special Servicer shall be effective until the successor Special Servicer has
assumed all of its responsibilities, duties and liabilities hereunder pursuant
to a writing satisfactory to the Trustee and each Rating Agency, as evidenced in
writing, and the Trustee has received written confirmation from each Rating
Agency that such appointment would not cause any Rating Agency to qualify,
withdraw or downgrade any of its then-current ratings on any Certificates. Any
successor Special Servicer shall make the representations and warranties
provided for in Section 2.04(a) mutatis mutandis.
SECTION 3.26. Transfer of Servicing Between Servicer or
Co-Servicer and Special Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
Mortgage Loan, the Servicer or the Co-Servicer, as applicable, shall immediately
give notice thereof, to the Special Servicer and shall use its best efforts to
provide the Special Servicer with all information, documents (but excluding the
original documents constituting the Mortgage File) and records (including
records stored electronically on computer tapes, magnetic discs and the like)
relating to the Mortgage Loan and reasonably requested by the Special Servicer
to enable it to assume its duties hereunder with respect thereto without acting
through a sub-servicer. The Servicer or the Co-Servicer, as applicable, shall
use its best efforts to comply with the preceding sentence within five Business
Days of the date such Mortgage Loan became a Specially Serviced Mortgage Loan
and in any event shall continue to act as Servicer or Co-Servicer, as
applicable, and administrator of such Mortgage Loan until the Special Servicer
has commenced the servicing of such Mortgage Loan, which shall occur upon the
receipt by the Special Servicer of the information, documents and records
referred to in the preceding sentence (provided that receipt of copies of all
documents in the Mortgage File shall suffice for such purpose). With respect to
each Mortgage Loan that becomes a Specially Serviced Mortgage Loan, the Servicer
or the Co-Servicer, as applicable, shall instruct the related Borrower to
continue to remit all payments in respect of such Mortgage Loan to the Servicer.
The Servicer, Co-Servicer or Special Servicer, as applicable, may agree that,
notwithstanding the preceding sentence, with respect to each Mortgage Loan that
became a Specially Serviced Mortgage Loan, the Servicer or the Co-Servicer, as
applicable, shall instruct the related Borrower to remit all payments in respect
of such Mortgage Loan to the Special Servicer, provided that the payee in
respect of such payments shall remain the Servicer or the Co-Servicer, as
applicable. The Special Servicer shall remit to the Servicer or the Co-Servicer,
as applicable, any such payments received by it pursuant to the preceding
sentence within one Business Day of receipt. The Servicer or the Co-Servicer, as
applicable, shall forward any notices it would otherwise send to the Borrower of
a Specially Serviced Mortgage Loan to the Special Servicer who shall send such
notice to the related Borrower.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Servicer or the Co-Servicer, as applicable, and upon giving such notice, such
Mortgage Loan shall cease to be a Specially Serviced Mortgage Loan in accordance
with the first proviso of the definition of Specially Serviced Mortgage Loan,
the Special Servicer's obligation to service such Mortgage Loan shall terminate
and the obligations of the Servicer or the Co-Servicer, as applicable, to
service and administer such Mortgage Loan as a Mortgage Loan that is not a
Specially Serviced Mortgage Loan shall resume. In addition, if the related
Borrower has been instructed, pursuant to the last sentence of the preceding
paragraph, to make payments to the Special Servicer, upon such determination,
the Special Servicer shall instruct the related Borrower to remit all payments
in respect of such Specially Serviced Mortgage Loan directly to the Servicer or
the Co-Servicer, as applicable.
(b) In servicing any Specially Serviced Mortgage Loan, the Special Servicer
shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Servicer or the Co-Servicer, as
applicable, as well as copies of any analysis or internal review prepared by or
for the benefit of the Special Servicer.
(c) Not later than the Business Day preceding each date on which each of
the Servicer and the Co-Servicer is required to furnish a report under Section
3.13(a) to the Trustee, the Special Servicer shall deliver to the Trustee, with
a copy to the Servicer or the Co-Servicer, as applicable, a written statement
describing, on a Mortgage Loan by Mortgage Loan basis (for all Mortgage Loans
for which the Special Servicer is collecting the payments thereon), (i) the
amount of all payments on account of interest received on each Specially
Serviced Mortgage Loan, the amount of all payments on account of principal,
including Principal Prepayments, on each Specially Serviced Mortgage Loan, the
amount of Net Insurance Proceeds and Net Liquidation Proceeds received with
respect to each Specially Serviced Mortgage Loan, and the amount of net income
or net loss, as determined from management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any rental income that does not constitute Rents from Real Property
with respect to the REO Property relating to each applicable Specially Serviced
Mortgage Loan, in each case in accordance with Section 3.17 and (ii) such
additional information relating to the Specially Serviced Mortgage Loans as the
Servicer, the Co-Servicer or Trustee reasonably requests to enable it to perform
its duties under this Agreement.
(d) Notwithstanding the provisions of the preceding subsection (c), the
Servicer and the Co-Servicer, as applicable, shall maintain ongoing payment
records with respect to each of the Specially Serviced Mortgage Loans and shall
provide the Special Servicer with any information reasonably required by the
Special Servicer to perform its duties under this Agreement. The Special
Servicer shall provide the Servicer and the Co-Servicer with any information
reasonably required by the Servicer or the Co-Servicer to perform its duties
under this Agreement.
(e) The Servicer or the Co-Servicer, as applicable, shall maintain all
records with respect to defeased Mortgage Loans.
SECTION 3.27. Interest Reserve Account.
(a) On each Servicer Remittance Date relating to any Interest Accrual
Period ending in any February and on any Servicer Remittance Date relating to
any Interest Accrual Period ending in any January which occurs in a year which
is not a leap year, the Servicer or the Co-Servicer, as applicable, shall remit
to the Trustee, in respect of the Interest Reserve Loans, for deposit into the
Interest Reserve Account, an amount equal to one day's interest (assuming a
360-day year) on the Stated Principal Balance of the Interest Reserve Loans as
of the Due Date occurring in the month preceding the month in which such
Servicer Remittance Date occurs at the related Net Mortgage Pass-Through 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, "Withheld
Amounts").
(b) On each Servicer Remittance Date occurring in March, the Servicer or
the Co-Servicer, as applicable, shall instruct the Trustee to withdraw from the
Interest Reserve Account an amount equal to the Withheld Amounts from the
preceding January and February, if any, and deposit such amount into the
Distribution Account.
SECTION 3.28. Limitations on and Authorizations of the Servicer,
the Co-Servicer and Special
Servicer with Respect to Certain Mortgage Loans.
(a) Prior to taking any action with respect to a Mortgage Loan secured by
Mortgaged Properties located in a "one-action" state, the Servicer, Co-Servicer
or Special Servicer, as applicable, shall consult with legal counsel, the fees
and expenses of which shall be an expense of the Trust Fund.
(b) With respect to any Mortgage Loan which permits the related Borrower,
with the consent or grant of a waiver by mortgagee, to incur additional
indebtedness, to grant additional encumbrances against the related Mortgaged
Property or to amend or modify the related Borrower's organizational documents
or the organizational documents of the owner of the Borrower, then the Servicer,
the Co-Servicer or the Special Servicer, as applicable, may only either consent
to such action, or grant a waiver with respect thereto, if the Servicer, the
Co-Servicer or the Special Servicer, as applicable, determines that such consent
or waiver is likely to result in an equal or greater recovery on a present value
basis (discounted at the related Mortgage Rate) than would not consenting to
such action and the Servicer, the Co-Servicer or the Special Servicer, as
applicable, first obtains written confirmation from each Rating Agency that such
consent or grant of a 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.
(c) With respect to the Mortgage Loans that require the related Borrower to
pay Rating Agency monitoring or review fees, the Servicer or the Co-Servicer, as
applicable, or the Special Servicer shall enforce the obligation of the related
Borrowers to pay Rating Agency monitoring or review fees and shall remit such
fees from the related Cash Collateral Account for payment of such fees to the
applicable Rating Agencies. The Servicer or the Co-Servicer, as applicable,
shall receive bills from the Rating Agencies for monitoring, review and
surveillance of the Certificates and the Mortgage Loans on behalf of CCA and
shall promptly notify and send such bills to CCA, Attention: Marlyn A. Marincas.
CCA will notify each Rating Agency to bill CCA for such services and to send
such bills to the Servicer and the Co-Servicer. The Servicer and the Co-Servicer
shall notify CCA of the portion of the bill that it has paid from funds
collected from such Borrowers and CCA will pay such portion of the bill not paid
from funds provided by the applicable Borrowers (as described in this section
(c)). Any Rating Agency monitoring or review fees shall be paid by Nomura Asset
Capital Corporation on an ongoing basis.
(d) With respect to all Mortgage Loans that provide that the holder of the
related Note may, following an event of default, apply amounts received
thereunder (including, without limitation, Liquidation Proceeds) against
principal, interest and any other sums due in the order as the holder shall
determine, the Servicer or the Co-Servicer, as applicable, shall apply amounts
received in respect of such Mortgage Loans (i) first to interest (other than
Excess Interest or Default Interest) due thereunder; (ii) next to principal;
(iii) next to default interest due thereunder; (iv) next to Prepayment Premiums
(excluding any Return of Premium Amounts) due thereunder; (v) then to any Excess
Interest due thereunder; (vi) then to reimburse any litigation or other expenses
incurred in collecting any such amounts received in respect of such Mortgage
Loan; (vii) then to any Return of Premium Amounts due thereunder and (viii)
finally to any other sums due thereunder.
(e) With respect to the Mortgage Loans that are ARD Loans, the Servicer or
the Co-Servicer, as applicable (including the Servicer or the Co-Servicer in its
capacity as a Certificateholder, if applicable), or 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 maturity date of the
related Mortgage Loan.
(f) To the extent not inconsistent with the related Mortgage Loan, none of
the Servicer, the Co-Servicer or the Special Servicer shall consent to a change
of franchise affiliation with respect to a Mortgaged Property unless it obtains
written confirmation from Fitch and Moody's that such consent would not, in and
of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates.
(g) With respect to any Mortgage Loan secured by a senior
housing/healthcare facility, the Special Servicer shall hire a consultant which
is experienced in the operation of such facilities in the event that such
Mortgage Loan becomes a Specially Serviced Mortgage Loan, the cost of which
shall constitute a Property Advance.
(h) With respect to the Mortgage Loans that are ARD Loans, the Servicer or
the Co-Servicer, as applicable, shall be permitted, in its discretion, to waive
all or any accrued Excess Interest if, prior to the related maturity date, the
related Borrower has requested the right to prepay the Mortgage Loan in full
together with all payments required by the Mortgage Loan in connection with such
prepayment except for all or a portion of accrued Excess Interest, provided that
the Servicer's or the Co-Servicer's determination to waive the right to such
accrued Excess Interest is reasonably likely to produce an equal or greater
payment to Certificateholders on a present value basis (discounted at the
related Mortgage Rate) than a refusal to waive the right to such Excess
Interest. Any such waiver shall not be effective until such prepayment is
tendered. The Servicer or the Co-Servicer, as applicable, will have no liability
to the Trust Fund, the Certificateholders or any other Person so long as such
determination is based on such criteria. Other than pursuant to Section 3.30,
the Special Servicer shall have no right to waive the payment of Excess Interest
under the circumstances described in this Section 3.28(h).
(i) With respect to the Mortgage 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 or the Co-Servicer, as applicable, to
continue to require the related Borrower to maintain earthquake insurance, the
Servicer or the Co-Servicer, as applicable, shall require the related Borrower
to maintain such insurance in the amount, in the case of clause (i), required by
the Mortgage Loan and in the amount, in the case of clause (ii), maintained at
origination, in each case, to the extent such amounts are available at
commercially reasonable rates. Any determination by the Servicer or the
Co-Servicer, as applicable, that such insurance is not available at commercially
reasonable rates 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.
(j) The Servicer or the Co-Servicer, as applicable, shall send written
notice to each Borrower and the related Manager and clearing bank that, if
applicable, the Servicer or the Co-Servicer, as applicable, and/or the Trustee
has been appointed as the "Designee" of the "Lender" under any related Lock-Box
Agreement.
(k) Each of the Servicer, the Co-Servicer and the Special Servicer hereby
agrees to use efforts consistent with the Servicing Standard to abide by the
terms and conditions precedent to payment of claims under any Residual Value
Policies and to use efforts consistent with the Servicing Standard to take all
such action as may be required to comply with the terms and provisions of such
policies in order to maintain, in full force and effect, such Residual Value
Policies. In addition to complying with all conditions to coverage, each of the
Servicer or the Co-Servicer, as applicable, and the Special Servicer hereby
agrees that it will use efforts consistent with the Servicing Standard to take
any and all actions required under the Residual Value Policy in connection with
any claim, including (i) the timely presentation of a proof of loss containing
all required information, (ii) providing reasonable access to any Mortgaged
Property (but only to the extent such access is available pursuant to the
related Loan Documents, applicable law and the related Credit Lease), (iii) the
providing of any other notices required under the Residual Value Policy in a
timely fashion, and (iv) the timely submission of claims under the Residual
Value Policy to the extent the Servicer, the Co-Servicer or the Special
Servicer, as applicable, determines in accordance with the Servicing Standard
that any such claim would not be excluded under the terms of the Residual Value
Policy. Any and all amounts collected under a Residual Value Policy shall be
immediately deposited in the Collection Account, subject to withdrawal as
provided herein.
(l) For any Specially Serviced Mortgage Loan and with respect to which,
under the terms of the related Loan Documents, the mortgagee may, in its
discretion, apply Insurance Proceeds, condemnation awards or escrowed funds to
the prepayment of such loan prior to the expiration of the related Lock-out
Period, the Special Servicer may only make such a prepayment if the Special
Servicer has first received the prior written consent of the Servicer or the
Co-Servicer, as applicable (if the Special Servicer is not the Servicer) (which
consent will be given or withheld in accordance with the Servicing Standard), or
the holders of 66 2/3% of the Voting Rights of the Certificates responding
within 20 Business Days to a solicitation of their consent.
(m) If any Mortgage Loan provides that the "Lender" with respect thereto is
required to purchase U.S. government obligations on behalf of the related
Borrower in connection with any defeasance of the related Note, the Servicer or
the Co-Servicer, as applicable, shall (upon receipt of sufficient funds from the
related Borrower) purchase such obligations and effectuate such defeasance, at
the Borrower's expense, in accordance with the provisions of the related Loan
Documents, consistent with the Servicing Standard.
(n) The Co-Servicer and the Special Servicer (together with their
employees, officers and directors) shall not utilize the proprietary and
nonpublic information that it becomes aware of in servicing the Mortgage Loans
to render advice in connection with, solicit or otherwise participate in the
refinancing of any Mortgage Loans (whether at maturity or otherwise, unless the
Mortgage Loan Seller confirms in writing that it will not pursue the refinancing
of such Mortgaged Property). Neither the Co-Servicer nor the Special Servicer
shall make its Mortgage Loan servicing system available to the Co-Servicer's
Affiliates or the Special Servicer's Affiliates, respectively, engaged in the
commercial mortgage origination business for the purpose of refinancing a
Mortgage Loan prior to or at its due date.
(o) The Servicer or Co-Servicer, as applicable, and the Special Servicer
shall administer the Split Notes in accordance with the related Co-Lender
Agreements.
(p) Without limiting the obligations of the Servicer or the Co-Servicer
hereunder with respect to the enforcement of a Borrower's obligations under the
related Mortgage Loan Documents, each of the Servicer and the Co-Servicer, as
applicable, agrees that it shall enforce the provisions of the Mortgage Loan
Documents with respect to the collection of Prepayment Premiums.
(q) In the event that a Rating Agency shall charge a fee in connection with
providing confirmation hereunder that a proposed action will not result in the
downgrade, withdrawal, or qualification of any rating assigned to any Class of
Certificates, the Servicer or the Co-Servicer, as applicable, shall require the
related Borrower to pay such fee to the full extent permitted under the
applicable Mortgage Loan Documents.
(r) The Servicer and the Co-Servicer shall convene dial-in conference calls
on a quarterly basis for the purpose of providing investors in the Certificates
with an opportunity to discuss pool and loan performance issues, beginning in
April 1999.
(s) To the extent not inconsistent with the related Mortgage Loan, none of
the Servicer, the Co-Servicer or the Special Servicer shall consent to a
replacement of the related Manager with respect to a Mortgaged Property unless
it obtains written confirmation from Fitch and Moody's that such consent would
not, in and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates; provided, however, that if
the Stated Principal Balance of such Mortgage Loan is less than the lesser of
(x) 5% of the total aggregate Stated Principal Balances of the Mortgage Loans
and (y) $30,000,000, and is not one of the ten largest Mortgage Loans in the
Trust Fund, such written confirmation shall not be required from any of the
Rating Agencies.
(t) To the extent not inconsistent with the related Mortgage Loan, none of
the Servicer, the Co-Servicer or the Special Servicer shall consent to a
transfer of ownership interest in any Borrower or beneficial owner of Borrower
with respect to a Mortgaged Property unless it obtains written confirmation from
Fitch and Moody's that such consent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates.
(u) To the extent not inconsistent with the related Mortgage Loan, the
Servicer or the Co-Servicer, as applicable, shall maintain all reserve accounts
and cash collateral accounts as Eligible Accounts and shall invest funds in such
accounts in Permitted Investments.
(v) To the extent not inconsistent with the related Mortgage Loan, the
Servicer or the Co-Servicer, as applicable, or the Special Servicer shall, as a
condition to granting consent to any material alteration of a Mortgaged Property
require any such Borrower to post cash security in the amount of 125% of the
projected cost of such alteration, provided, however, that if the Stated
Principal Balance of such Mortgage Loan is less than the lesser of (x) 5% of the
total aggregate Stated Principal Balances of the Mortgage Loans and (y)
$30,000,000, and is not one of the ten largest Mortgage Loans in the Trust Fund,
such deposit shall not be required. A material alteration shall be an alteration
where the projected cost of such alteration exceeds 5% of the Stated Principal
Balance of such Mortgage Loan.
(w) Pursuant to the provisions of any Mortgage Loan which provides for the
removal of a property manager, any calculation of Debt Service Coverage Ratio by
the Servicer or the Co-Servicer, as applicable, or the Special Servicer shall
use the Mortgage Rate, and not the Revised Mortgage Rate, regardless of the rate
in effect at the time of such calculation.
(x) The Servicer or the Co-Servicer, as applicable, or the Special Servicer
shall not remove any Manager solely because any Mortgage Loan has reached its
Anticipated Repayment Date and there remains an outstanding principal balance on
such Mortgage Loan.
(y) The assignment to the Trust Fund of the ACCOR Credit Leases
notwithstanding, the right of the landlord under the ACCOR Credit Leases to
approve of the substitution of the related Mortgaged Properties under certain
specified circumstances may be exercised only by the Borrower and not by the
Trustee, the Servicer or the Special Servicer, to the extent consistent with the
applicable law and the related Loan Documents; provided, that the foregoing
shall not contravene any requirement under the Loan Documents to obtain any
Rating Agency confirmation.
SECTION 3.29. Intentionally Left Blank.
SECTION 3.30. Modification, Waiver, Amendment and Consents.
(a) The Special Servicer may, consistent with the Servicing Standard, agree
to the modification, waiver or amendment of any term of a Mortgage Loan either
(i) which is in default or as to which default is reasonably foreseeable or (ii)
pursuant to Section 3.30(k).
(b) Intentionally Left Blank.
(c) Following a default on a Mortgage Loan at maturity, the Special
Servicer may either foreclose or elect to grant a one-year extension of the
Specially Serviced Mortgage Loan; provided that the Special Servicer may only
extend such Mortgage Loan if (i) the Special Servicer determines in its
reasonable judgment that the related Borrower has attempted in good faith to
refinance such Mortgage Loan or Mortgaged Property, (ii) the Special Servicer
determines that (A) extension of such Mortgage Loan is consistent with the
Servicing Standard and (B) extension of such Mortgage Loan is likely to result
in a recovery which on a net present value basis would be equal to or greater
than the recovery that would result from a foreclosure, (iii) such extension
requires that all cash flow on all related Mortgaged Properties in excess of
amounts required to operate and maintain such Mortgaged Properties be applied to
payments of principal and interest on such Mortgage Loan and (iv) the Special
Servicer terminates the related Manager unless the Special Servicer determines
that retaining such Manager is conducive to maintaining the value of such
Mortgaged Properties; provided, further, that, if after notice to all
Certificateholders, Holders of Certificates evidencing at least 66-2/3% of the
Voting Rights of each Class of Certificates entitled to vote direct the Special
Servicer not to extend, the Special Servicer will not extend; provided, further,
that, if the Special Servicer is not the Servicer or Co-Servicer and the
Servicer or Co-Servicer, as applicable, would not elect to extend, Holders of
Certificates evidencing greater than (a) 50% of the aggregate Voting Rights of
all Certificateholders entitled to vote and (b) 66-2/3% of the aggregate Voting
Rights of all Certificateholders entitled to vote who respond to such notice,
may direct the Special Servicer not to extend. Notwithstanding the foregoing,
the Special Servicer may extend pursuant to the Instructions of the Directing
Holders pursuant to subsection (d) below. The holders of the Class PS-1
Certificates will not be entitled to vote with respect to proposed extensions of
a Specially Serviced Mortgage Loan.
(d) The Special Servicer may be given revocable instructions
("Instructions") (with a copy to the Servicer or the Co-Servicer, as applicable)
to extend a Specially Serviced Mortgage Loan that has defaulted at maturity by
the Holders of Certificates representing greater than 50% of the Voting Rights
of the most subordinate Class or Classes of Certificates then outstanding
representing a minimum of 1.0% of the aggregate initial Certificate Balances of
all Classes of Certificates (or if the Certificate Balance of such Class or
Classes has been reduced to less than 40% of its initial Certificate Balance,
the holders of such Class together with the Holders of the next most subordinate
Class) (the "Directing Holders") under the following circumstance and subject to
the requirements of paragraph (e):
(i) If the Special Servicer has determined to commence
foreclosure or acquisition proceedings, the Special
Servicer shall notify the Trustee (and the Trustee
hereby agrees to notify Directing Holders ), the
Depositor and the Servicer or the Co-Servicer, as
applicable, of its proposed action;
(ii) If the Special Servicer receives contrary
Instructions from the Directing Holders within seven
days after notice was given to the Directing Holders
(and the Trustee hereby agrees to forward to the
Special Servicer promptly any Instructions provided
by the Directing Holders), the Special Servicer will
delay such proceedings, and the procedures described
below shall apply to the servicing of such Mortgage
Loan; and
(iii) In the event that the Special Servicer does not
receive such Instructions within such seven-day
period, the Special Servicer may proceed in
connection with the foreclosure or acquisition in a
manner consistent with the Servicing Standard.
If the Directing Holders revoke their Instructions to extend the Mortgage Loan,
the Special Servicer shall service the Mortgage Loan without regard to such
original Instructions; provided, however, that the Directing Holders shall be
required to maintain the Collateral Account in accordance with this Section 3.30
unless and until the Mortgage Loan is no longer a Specially Serviced Mortgage
Loan for nine consecutive months or has been liquidated; and provided, further,
that any such foreclosure shall be subject to the provisions of this Section
3.30.
(e) If the Special Servicer receives Instructions and the Servicer or the
Co-Servicer, as applicable, has not otherwise been required to obtain an Updated
Appraisal as described above, the Special Servicer will obtain an Updated
Appraisal as soon as reasonably practicable to determine the fair market value
of each related Mortgaged Property, after accounting for the estimated
liquidation and carrying costs (the "Fair Market Value" of such Mortgaged
Property), provided that the cost of such Updated Appraisal will constitute a
Property Advance. Within two Business Days after the Special Servicer's receipt
of Instructions, the Directing Holders are required to deposit (in proportion to
their respective Percentage Interests) into a segregated account (the
"Collateral Account") established by the Servicer an amount equal to the lesser
of (a) 125% of the Fair Market Value of the related Mortgaged Property and (b)
the outstanding principal balance of the Mortgage Loan plus unreimbursed
Advances (with interest thereon) and unpaid accrued interest (the "Deposit"). If
no Updated Appraisal has yet been obtained, the amount of the Deposit will be
determined based on the Special Servicer's (or if the Special Servicer is a
Directing Holder, the Servicer's or the Co-Servicer's, as applicable) estimate
of the Fair Market Value of the Mortgaged Property, in which case, upon the
Special Servicer's receipt of such Updated Appraisal, the Special Servicer (or
if the Special Servicer is a Directing Holder, the Servicer or the Co-Servicer,
as applicable) will remit any excess deposit to the Directing Holders, or the
Directing Holders will deposit in the Collateral Account any shortfall, as the
case may be. In the event that the Directing Holders do not make the required
deposit within two Business Days of the Special Servicer's receipt of
Instructions, the Special Servicer will disregard such Instructions. The
Directing Holders will be deemed to have granted to the Special Servicer (or the
Servicer or Co-Servicer, if applicable) for the benefit of Certificateholders a
first priority security interest in the Collateral Account, as security for the
obligations of the Directing Holders.
(f) If the Special Servicer is acting pursuant to Instructions, the Special
Servicer shall direct the Servicer to withdraw from the Collateral Account (and
to liquidate the Collateral Account, if necessary) for deposit into the
Collection Account on or prior to the Business Day preceding each Servicer
Remittance Date a sum equal to the P&I Advances and Property Advances for the
related Mortgage Loan which in the absence of Instructions would be made by the
Servicer, the Co-Servicer or the Special Servicer, as applicable (and the
obligation to make such advances shall not be subject to a non-recoverability
standard), and the Directing Holders shall, upon request therefor by the Special
Servicer (or if the Special Servicer is a Directing Holder, the Servicer or the
Co-Servicer, as applicable), deposit from their own funds into the Collateral
Account the amount of such P&I Advances or Property Advances. If the Directing
Holders fail to make such Deposit within one Business Day after receipt of the
Special Servicer's, Servicer's or Co-Servicer's, as applicable, request, the
Special Servicer will no longer be required to follow such Instructions and will
specially service such Mortgage Loan as though no Instructions had been given;
provided, however, that the Directing Holders will be required to maintain the
Collateral Account unless and until the related Mortgage Loan is no longer a
Specially Serviced Mortgage Loan for nine consecutive months or has been
liquidated. The Servicer will invest amounts on deposit in the Collateral
Account in Permitted Investments upon direction by the Directing Holders.
Directing Holders will be entitled to reinvestment income as received, and will
reimburse the Collateral Account for any losses incurred. Any Collateral Account
established hereunder will be an "outside reserve fund" beneficially owned by
the related Directing Holders for federal income tax purposes, and any amounts
paid or reimbursed from the Upper-Tier REMIC or Lower-Tier REMIC to the
Collateral Account will be treated as paid to the Directing Holders as
beneficial owners.
(g) Until the disposition of the Specially Serviced Mortgage Loan or
Mortgaged Property as to which Directing Holders have provided Instructions or
the cure of such default, no P&I Advances shall be made in respect of amounts
otherwise distributable to the Class of the Directing Holders in respect of such
Mortgage Loan. The Trustee shall notify the Servicer at least one Business Day
prior to the Servicer Remittance Date of the amount of scheduled distributions
otherwise due to the Class of Certificates held by the Directing Holders on the
related Distribution Date.
(h) The Special Servicer shall provide copies of any modifications or
extensions to each Rating Agency. All modifications, waivers, amendments and
other actions entered into or taken in respect of the Mortgage Loans pursuant to
this Section 3.30 shall be in writing. The Special Servicer shall notify the
Servicer or the Co-Servicer, as applicable, and the Trustee, in writing, of any
modification, waiver, amendment or other action entered into or taken in respect
of any Mortgage Loan pursuant to this Section 3.30, prior to the effective date
thereof and the date as of which the related modification, waiver or amendment
is to take effect, and shall deliver to the Trustee or the related Custodian for
deposit in the related Mortgage File (with a copy to the Servicer) an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within 10 Business Days) following the
execution thereof. Following the execution of any modification, waiver or
amendment agreed to by the Special Servicer pursuant to clauses (a) and (b)(i)
above, the Special Servicer shall deliver to the Trustee (with a copy to the
Servicer or the Co-Servicer, as applicable) an Officer's Certificate setting
forth in reasonable detail the basis of the determination made by it pursuant to
clause (a) and (b)(i) above.
(i) If a modification, waiver or amendment results, in and of itself, in
the withdrawal, downgrade or qualification of any of the then-current ratings
assigned to any Class of Certificates (not including the Class of Certificates,
if any, that consented to such actions), then the Special Servicer shall be
terminated and shall be replaced pursuant to Section 7.02.
(j) Any payment of interest which is deferred as described herein shall
not, for purposes, including, without limitation, of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so permit or that such interest may actually be capitalized.
(k) The Servicer, Co-Servicer or the Special Servicer, as applicable, shall
be permitted to modify, waive or amend any term of a Mortgage Loan that is not
in default or as to which default is not reasonably foreseeable, but only if
such modification, waiver or amendment (a) (i) would not be "significant" as
such term is defined in Treasury Regulations Section 1.860G-2(b), as determined
by the Servicer, Co-Servicer or Special Servicer (and the Servicer, Co-Servicer
or Special Servicer may rely on an Opinion of Counsel in making such
determination), or (ii) occurs within three months of the Startup Day, (b) would
be in accordance with the Servicing Standard and (c) would not adversely affect
in any material respect the interest of any Certificateholder not consenting
thereto. The consent thereto of the majority of Percentage Interests of each
Class of Certificates affected thereby or written confirmation from each Rating
Agency that such modification, waiver or amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates shall not be required, but either shall be conclusive evidence
that such modification, waiver or amendment would not adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
SECTION 3.31. Release of Servicing with Respect to Credit Lease
Loans Upon Securitization of the Related Other Notes.
In the event that any Other Note with respect to any of the Credit Lease
Loans or the Prime Retail Pool Loan is acquired by an Other Trust Fund at any
time on or after the Closing Date, then, upon payment in full of all amounts due
at such time under the related Split Note, the Servicer or the Co-Servicer, as
applicable, and the Special Servicer shall relinquish its rights to service or
specially service the Split Loan, at which time the Split Loan shall be serviced
by the Other Servicer or Other Special Servicer in accordance with the related
Co-Lender Agreement and the related Mortgage File shall be released to the Other
Trustee in accordance with Section 2.01(b) hereof; provided, however, that, in
the event the Special Servicer is then specially servicing the Split Loan, the
Special Servicer shall continue to specially service the Split Loan without
regard to the acquisition of the Other Note or Other Notes by an Other Trust
Fund; provided, further, that prior to relinquishing its rights to service, the
Servicer, the Co-Servicer or the Special Servicer shall received written
confirmation from the Rating Agencies that the foregoing shall not result in a
qualification, withdrawal or downgrade of any rating of the Certificates.
SECTION 3.32 Servicing of Mortgage Loans subject to Co-Lending
Agreements
(a) With respect to each of the Lead Lender Split Notes, the Servicer or
the Co-Servicer as applicable, and Special Servicer will act as the lead
servicer and special servicer, respectively, with respect to the servicing of
the related Split Loans and will service such Split Loans pursuant to the
provisions of this Agreement and the Servicing Standard with a view toward the
maximization of recovery on both the Split Note included in the Trust Fund and
related Other Note or Other Notes. All amounts collected by the Servicer or the
Co-Servicer, as applicable (or the Trustee, the Fiscal Agent or Special
Servicer, as applicable), with respect to any Split Note shall be allocated in
the manner prescribed in the related Co-Lender Agreement.
(b) With respect to each Split Loan, the Servicer or the Co-Servicer, as
applicable (or the Trustee, Fiscal Agent or Special Servicer, as applicable),
will hold the Mortgaged Property, any insurance thereon (including, but not
limited to, property, casualty and residual value insurance) and any proceeds
derived from the Split Loan or the Mortgaged Property for the benefit of the
holders of the Split Note and the Other Note or Other Notes, and will allocate
and pay any such proceeds therefrom in the manner prescribed in the related
Co-Lender Agreement.
(c) Notwithstanding any of the provisions of Section 4.06 to the contrary,
with respect to any P&I Advance that is made pursuant to Section 4.06 with
respect to a Lead Lender Split Note or a Co-Lender Split Note that is in the
Trust Fund, such P&I Advance shall not exceed the amount due with respect to
such Split Note.
(d) Notwithstanding any of the provisions of Section 3.24 to the contrary,
with respect to any Property Advance that is made with respect to a Mortgaged
Property securing a Lead Lender Split Note, the Servicer or the Co-Servicer, as
applicable (or the Trustee, Fiscal Agent or Special Servicer, to the extent
required by this Agreement), shall advance the entire amount of such Property
Advance, subject to Section 3.24(c). To the extent that a Property Advance and
related Advance Interest Amounts have been determined to be Nonrecoverable
Advances and have not been reimbursed from recoveries in respect of the related
Mortgage Loan, the Servicer or the Co-Servicer, as applicable (or the Trustee,
Fiscal Agent or Special Servicer, as applicable), shall enforce its rights under
the related Co-Lender Agreement against the Other Servicer to collect a pro rata
share (based on the outstanding principal amount of each note) of such
Nonrecoverable Advance. Any out-of pocket expenses incurred in pursuing such
recovery shall be paid out of the Collection Account. With respect to any
Co-Lender Split Notes, to the extent that the Co-Lender Agreement requires
reimbursement of the Other Servicer on behalf of the Lead Lender of such Split
Loan of any Property Advance, the Servicer or the Co-Servicer, as applicable,
shall reimburse such amount as a Property Advance hereunder. To the extent that
the pro rata portion of any Advance allocable to the Other Note and advanced by
the Lead Lender is not reimbursed by the related Other Trust Fund, such amount
shall be deemed to be a Nonrecoverable Advance and shall be reimbursed pursuant
to 3.06(ii).
(e) With respect to any Property Advance to be made hereunder with respect
to a Co-Lender Split Note, the determination by the Other Servicer shall be
binding upon the party or parties required to make such Advance hereunder, both
for determining whether or not such Advance should be made and determining how
such Advance should be reimbursed to such Party.
(f) If the Other Servicer is not the Servicer or the Co-Servicer, as
applicable, such Co-Lender Split Note shall be serviced hereunder by the
servicer of such Other Note as a co-servicer, in accordance with the provisions
of this Agreement and the related Co-Lender Agreement.
(g) In the event that any Other Note is acquired by an Other Trust Fund,
such acquisition shall not result in a qualification, withdrawal or downgrade of
any rating of the Certificates. In the event the acquisition of an Other Note by
an Other Trust Fund does result in such a qualification, withdrawal or
downgrade, the Depositor shall repurchase the related Split Note from the Trust
Fund in the same manner as provided for under Section 2.03(e) hereof.
(h) Copies of Certain Materials to Servicers of Other Notes. The Servicer
or Co-Servicer, as applicable, shall deliver or cause to be delivered to the
Other Servicer the following materials, in writing and on a computer readable
medium reasonably acceptable to the Other Servicer (and such reports may include
any reasonable disclaimers with respect to information provided by third parties
or with respect to assumptions required to be made in the preparation of such
reports as the Servicer or the Co-Servicer, as applicable, deems appropriate):
(i) Copies of the following reports given to the Trustee:
(x) the Operating Statement Analysis (with operating
statements and rent rolls where provided by the
Borrower) and NOI Adjustment Worksheet under Section
3.13(d); and (y) a notice to the Trustee under
Section 3.19(b) with respect to the related Split
Note;
(ii) The information contained in the Delinquent Loan
Status Report with respect to the Split Notes;
(iii) Copies of the annual compliance statement delivered
pursuant to Section 3.14 and the Accountant's
Statement delivered pursuant to Section 3.15;
(iv) If requested, copies of all property inspection
reports for the Split Notes conducted pursuant to
Section 3.19(a); and
(v) Copies of the Watch List whenever a Split Note
appears thereon.
SECTION 3.33. Engagement of Operating Advisor; Procedures..
(a) Engagement. The Operating Advisor will act as operating advisor for the
Affiliated Mortgage Loans on behalf on the Trust Fund and the Trustee (as
trustee for Certificateholders) in accordance with any and all applicable laws,
the terms of this Agreement, the respective Affiliated Mortgage Loan, and the
Servicing Standard.
(b) Notification. Upon the occurrence of any event that causes a Mortgage
Loan to become, or cease to be, an Affiliated Mortgage Loan, the Servicer will
deliver written notice thereof to the Operating Advisor, substantially in the
form of Exhibit N hereto (the "Notice and Acknowledgment"), which Notice and
Acknowledgment shall be signed by the Operating Advisor and returned to the
Servicer within one (1) Business Day following receipt thereof.
(c) Activities. (i) Pursuant to the procedures set forth in clause (d)
below, the Operating Advisor shall approve in writing all of the following
actions of the Servicer in the course of servicing any Affiliated Mortgage Loan
pursuant to this Agreement:
(A) waivers, consents, assumptions or substitutions described in
Section 3.09(a);
(B) waivers described in Section 3.09(b);
(C) any action taken by the Servicer pursuant to Section 3.09(e)
with respect to a defeasance requested by a Borrower;
(D) modifications, waivers or amendments with respect to an
Affiliated Mortgage Loan (including, without limitation, any
lease reviews and consents) pursuant to Section 3.30(k);
(E) the Servicer's determination that any Property Advance
constitutes a Nonrecoverable Advance pursuant to Section
3.24;
(F) the decision to transfer a Affiliated Mortgage Loan to the
Special Servicer pursuant to Section 3.26; and
(G) any request for a release from a Reserve Account (other than
a Reserve Account for taxes or insurance) of an amount in
excess of five thousand dollars ($5,000.00).
(ii) If in the course of the performance of its duties hereunder, the
Operating Advisor actually becomes aware of any event or circumstance described
in items (i) through (viii) of the definition of "Specially Serviced Mortgage
Loan," the Operating Advisor may direct that a Affiliated Mortgage Loan become a
Specially Serviced Mortgage Loan, notwithstanding any determination of the
Servicer to the contrary.
(d) Procedures. For each request for an approval from the Operating Advisor
hereunder, the Servicer will deliver all relevant information in its possession
to the Operating Advisor in the most expeditious manner practicable, together
with an Officers Certificate stating all of the relevant material facts with
respect to the requested action and stating that the Operating Advisor's and
Servicer's approval of such action would be in accordance with this Agreement
and that the Servicer recommends, consistent with the Servicing Standard, that
the Operating Advisor consent to such action. The Servicer shall attach to such
Officers Certificate copies of documentation necessary to complete the requested
action if approval is obtained.
The Operating Advisor will approve or disapprove the action proposed to be
taken by the Servicer in a letter to the Servicer in the form attached hereto as
Exhibit O within five (5) Business Days after its receipt of such request from
the Servicer, or will request specified additional information from the
Servicer. If additional information is requested, the Servicer will provide such
information as is readily available within two (2) Business Days. The Operating
Advisor will, based on information provided to the Operating Advisor, use best
efforts to approve or disapprove actions with respect to Advances or transfers
of a Affiliated Mortgage Loan to the Special Servicer as provided in Section
3.33(c)(v) and (vi) above within three (3) Business Days of its receipt of a
request therefor and receipt of the relevant information. In all cases, the
Operating Advisor's failure to respond to the Servicer's request within five (5)
Business Days from the time the Operating Advisor is in receipt of all
information requested by the Operating Advisor pursuant to this Section 3.33(d)
shall be deemed approval by the Operating Advisor. Notwithstanding the
foregoing, however, if the failure to take action would have a material adverse
effect on the Certificateholders under the Servicing Standard, the Servicer may
take action if the Operating Advisor has not responded within three (3) Business
Days, provided that the Operating Advisor will have no liability for any failure
to approve or disapprove of any action so taken by the Servicer and the Servicer
shall promptly notify the Operating Advisor of any action taken.
(e) No Borrower Contact. The Operating Advisor shall not make any contact
with, or make any request of, a Borrower or subservicer except as specifically
directed by the Servicer.
(f) Operating Advisor Compensation. As compensation for its activities
hereunder, the Operating Advisor shall be entitled with respect to each
Affiliated Mortgage Loan to (i) the Operating Advisor Fee and (ii) in the event
the consent of the Operating Advisor is required for any action, 50% of all
borrower paid modification, consent, extension and Assumption Fees due the
Servicer for such Affiliated Mortgage Loan. The Operating Advisor Compensation
shall be paid by the Servicer. The Servicer shall remit to the Operating Advisor
the Operating Advisor Fee on the Servicer Remittance Date, to the extent the
Servicing Fee has been paid with respect to the Affiliated Mortgage Loans. All
other Operating Advisor Compensation shall be remitted to the Operating Advisor
by the Servicer within three (3) Business Days after receipt by the Servicer.
(g) Expenses. The Operating Advisor shall pay all costs and expenses
incurred by the Operating Advisor in performing its duties hereunder and the
Servicer shall have no obligation therefor.
(h) Copies of Certain Materials to Operating Advisor. The Servicer shall
deliver or cause to be delivered to the Operating Advisor the following
materials, in writing and on a computer readable medium reasonably acceptable to
the Operating Advisor (and such reports may include any reasonable disclaimers
with respect to information provided by third parties or with respect to
assumptions required to be made in the preparation of such reports as the
Servicer deems appropriate):
(i) Copies of the following reports given to the Trustee:
(x) the Operating Statement Analysis (with operating
statements and rent rolls where provided by the
Borrower) and NOI Adjustment Worksheet under Section
3.13(d); and (y) a notice to the Trustee under
Section 3.19(b) with respect to a Affiliated Mortgage
Loan;
(ii) The information contained in the Delinquent Loan
Status Report with respect to the Affiliated Mortgage
Loans;
(iii) Copies of the annual compliance statement delivered
pursuant to Section 3.14 and the Accountant's
Statement delivered pursuant to Section 3.15;
(iv) If requested, copies of all property inspection
reports for the Affiliated Mortgage Loans conducted
pursuant to Section 3.19(a); and
(v) Copies of the Watch List whenever a Affiliated
Mortgage Loan appears thereon.
(i) Amendment. Notwithstanding the provisions of Section 10.07 hereof, this
Section 3.33 may be amended by the Servicer and the Operating Advisor only;
provided, however, that the party requesting such amendment shall receive
written confirmation from each Rating Agency that such amendment will not result
in a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates.
(j) Resignation. The Operating Advisor may resign from its obligations and
duties hereunder upon a determination that such duties are no longer permissible
under applicable law. Any such determination shall be evidenced by an Opinion of
Counsel (obtained at the resigning Operating Advisor's expense) to such effect
delivered to the Servicer. In addition, and subject to Section 3.33(k) hereof,
the Operating Advisor may resign from its obligations and duties hereunder upon
sixty (60) days written notice to the Servicer, provided, however, that such
resignation shall not become effective until the appointment of a successor
Operating Advisor becomes effective.
(k) Successor Operating Advisor. Notwithstanding anything contained herein
to the contrary, no appointment of a successor Operating Advisor shall become
effective until the Servicer receives written confirmation from each of the
Rating Agencies that such appointment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
any Class of Certificates.
(l) Automatic Termination. The duties, obligations and responsibilities of
the Operating Advisor shall automatically terminate:
(i) if the CCA Servicer is no longer acting as the Servicer
under this Agreement;
(ii) with respect to a particular Affiliated Mortgage Loan, when
that Mortgage Loan is no longer an Affiliated Mortgage Loan
and the Operating Advisor has been notified of such event
pursuant to notification under Section 3.33(b) hereof; or
(iii) upon the termination of this Agreement.
(m) Effect of Termination. If the duties of the Operating Advisor are
terminated or this Agreement is otherwise terminated as herein provided, the
Operating Advisor shall be entitled to all Operating Advisor Fees and other
compensation and fees due the Operating Advisor that have accrued and that are
owing to the Operating Advisor under the terms of this Agreement as of the
effective date of such termination.
<PAGE>
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall pay to itself from the
Distribution Account the Trustee Fee, and the remaining amounts held in the
Distribution Account shall be withdrawn (to the extent of Available Funds or, in
the case of clause (ii), Prepayment Premiums) and distributed in respect of the
Lower-Tier Regular Interests as follows:
(i) The amounts and timing of principal and interest payments and
Prepayment Interest Shortfall allocations on each Lower-Tier REMIC
Regular Interest will be identical to such amounts and timing on
the corresponding Class of Related Certificates for such
Distribution Date, except that, solely for this purpose, all
calculations with respect to the Related Lower-Tier Regular
Interests shall be made as though (x) the Class A-1A, Class A-1B,
Class A-2, Class A-3, Class A-4, Class A-5, Class B-1, Class B-2,
Class B-3, Class B-4 and Class B-5 Pass-Through Rates were equal
to the Weighted Average Net Mortgage Pass-Through Rate, (y) the
Class PS-1 Notional Balance were zero at all times, and (z) any
Reduction Interest Shortfall allocated to, or any restoration of
amounts corresponding to such Reduction Interest Shortfall
distributed on, the Class PS-1 Certificates on such Distribution
Date based on notional reductions to the Certificate Balance of a
Related Certificate were allocated to or distributed on, as the
case may be, the Lower-Tier Regular Interest that corresponds to
such Related Certificate.
(ii) Prepayment Premiums shall be distributed in respect of the
Lower-Tier Regular Interests in accordance with Section
4.01(c)(ii).
(iii) Realized Losses shall be allocated to, and shall reduce the
Certificate Balances of, each Class of Lower-Tier Regular
Interests without distribution on any Distribution Date, to the
extent that the Certificate Balance of such Class exceeds the
Certificate Balance of the corresponding Related Certificates
because of Realized Losses allocated to such Related Certificates.
Amounts recovered in respect of any amounts previously written off
as Realized Losses will be distributed to the Related Lower-Tier
Regular Interests, to the extent that amounts recovered in respect
of any amounts previously written off as Realized Losses are
distributed to the corresponding Related Certificates.
(iv) Any amounts remaining in the Distribution Account after the
distribution set forth above in this Section 4.01(a)(i)-(iii)
shall be distributed to the Class LR Certificates.
(b) On each Distribution Date, amounts distributed on the Lower-Tier
Regular Interests pursuant to Section 4.01(a) shall be deposited in the
Upper-Tier Distribution Account, and Holders of each Class of Certificates
(other than the Class LR Certificates) shall receive distributions from amounts
on deposit in the Upper-Tier Distribution Account in respect of interest and
principal, subject to Section 4.01(h), in the amounts and in the order of
priority set forth below:
(i) First, pro rata, in respect of interest, to the Class A-1A, Class
A-1B and Class PS-1 Certificates, up to an amount equal to the
aggregate Class Interest Distribution Amounts of such Classes;
(ii) Second, pro rata, to the Class A-1A, Class A-1B and Class PS-1
Certificates, in respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously allocated to
such Classes;
(iii) Third, prior to the Crossover Date, to the Class A-1A
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount until the
Certificate Balance thereof is reduced to zero;
(iv) Fourth, prior to the Crossover Date, to the Class A-1B
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount less amounts of
Principal Distribution Amount distributed pursuant to all prior
clauses, until the Certificate Balance of such Class is reduced to
zero;
(v) Fifth, to the Class A-2 Certificates in respect of interest, up to
an amount equal to the Class Interest Distribution Amount of such
Class;
(vi) Sixth, pro rata, (A) to the Class A-2 Certificates in respect of
interest, up to an amount equal to the unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class
PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-2 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(vii) Seventh, to the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(viii) Eighth, to the Class A-2 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(ix) Ninth, to the Class A-3 Certificates in respect of interest, up to
an amount equal to the Class Interest Distribution Amount of such
Class;
(x) Tenth, pro rata, (A) to the Class A-3 Certificates in respect of
interest, up to an amount equal to the unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class
PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-3 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xi) Eleventh, to the Class A-3 Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xii) Twelfth, to the Class A-3 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xiii) Thirteenth, to the Class A-4 Certificates in respect of interest,
up to an amount equal to the Class Interest Distribution Amount of
such Class;
(xiv) Fourteenth, pro rata, (A) to the Class A-4 Certificates in respect
of interest, up to an amount equal to the unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class
PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-4 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xv) Fifteenth, to the Class A-4 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xvi) Sixteenth, to the Class A-4 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xvii) Seventeenth, to the Class A-5 Certificates in respect of interest,
up to an amount equal to the Class Interest Distribution Amount of
such Class;
(xviii)Eighteenth, pro rata, (A) to the Class A-5 Certificates in
respect of interest, up to an amount equal to the unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-5 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xix) Nineteenth, to the Class A-5 Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xx) Twentieth, to the Class A-5 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxi) Twenty-first, to the Class B-1 Certificates in respect of
interest, up to an amount equal to the Class Interest Distribution
Amount of such Class;
(xxii) Twenty-second, pro rata, (A) to the Class B-1 Certificates in
respect of interest, up to an amount equal to the unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class B-1 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xxiii)Twenty-third, to the Class B-1 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxiv) Twenty-fourth, to the Class B-1 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxv) Twenty-fifth, to the Class B-2 Certificates in respect of
interest, up to an amount equal to the Class Interest Distribution
Amount of such Class;
(xxvi) Twenty-sixth, pro rata, (A) to the Class B-2 Certificates in
respect of interest, up to an amount equal to the unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class B-2 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xxvii)Twenty-seventh, to the Class B-2 Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxviii) Twenty-eighth, to the Class B-2 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxix) Twenty-ninth, to the Class B-3 Certificates in respect of
interest, up to an amount equal to the Class Interest Distribution
Amount of such Class;
(xxx) Thirtieth, pro rata, (A) to the Class B-3 Certificates in respect
of interest, up to an amount equal to the unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class
PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class B-3 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xxxi) Thirty-first, to the Class B-3 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxxii)Thirty-second, to the Class B-3 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxxiii) Thirty-third, to the Class B-4 Certificates in respect of
interest, up to an amount equal to the Class Interest Distribution
Amount of such Class;
(xxxiv)Thirty-fourth, (A) to the Class B-4 Certificates in respect of
interest, up to an amount equal to the unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class
PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class B-4 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xxxv) Thirty-fifth, to the Class B-4 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxxvi)Thirty-sixth, to the Class B-4 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xxxvii) Thirty-seventh, to the Class B-5 Certificates in respect of
interest, up to an amount equal to the Class Interest Distribution
Amount of such Class;
(xxxviii) Thirty-eighth, pro rata, (A) to the Class B-5 Certificates in
respect of interest, up to an amount equal to the unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class B-5 Certificates pursuant to
Section 4.01(i) up to an amount equal to the Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under clause (B);
(xxxix)Thirty-ninth, to the Class B-5 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xl) Fortieth, to the Class B-5 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the
aggregate of such unreimbursed Realized Losses previously
allocated to such Class;
(xli) Forty-first, pro rata, (A) to the Class PS-1 Certificates in
respect of the Reduction Interest Distribution Amount attributable
to the notional reduction in the Certificate Balance of the Class
B-6 and Class B-6H Certificates up to an amount equal to the
Reduction Interest Distribution Amount so attributable and (B) to
the Class PS-1 Certificates, up to an amount equal to the unpaid
Reduction Interest Shortfalls previously allocated to the Class
PS-1 Certificates in respect of Reduction Interest Distribution
Amounts distributable under clause (A);
(xlii) Forty-second, pro rata, to the Class B-6 and Class B-6H
Certificates in respect of interest, up to an amount equal to the
aggregate Class Interest Distribution Amounts of such classes;
(xliii)Forty-third, pro rata, to the Class B-6 and Class B-6H
Certificates in respect of interest, up to an amount equal to the
aggregate unpaid Class Interest Shortfalls previously allocated to
such classes;
(xliv) Forty-fourth, pro rata, based on Certificate Balance to the Class
B-6 and Class B-6H Certificates in reduction of the Certificate
Balances thereof, an amount equal to the Principal Distribution
Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of each such class is reduced to zero;
(xlv) Forty-fifth, pro rata, to the Class B-6 and Class B-6H
Certificates, to the extent not distributed pursuant to all prior
clauses, for the unreimbursed amounts of Realized Losses, if any,
an amount equal to the aggregate of such unreimbursed Realized
Losses previously allocated to such classes; and
(xlvi) Forty-sixth, to the Class R Certificates.
On each Distribution Date, amounts received on a Mortgage Loan that
represent recoveries of Subordinate Class Advance Amounts shall be allocated by
the Trustee to the Class of Certificates and the Related Lower-Tier Regular
Interest that advanced the related Subordinate Class Advance Amount in respect
of the distributions to which such Class of Certificates and Related Lower-Tier
Regular Interest were entitled on the Distribution Date on which such
distributions were reduced by such Subordinate Class Advance Amount. Amounts
allocated with respect to interest shall be applied to any related unpaid Class
Interest Shortfalls. On each Distribution Date, the Paying Agent shall
distribute such recoveries of Subordinate Class Advance Amounts allocated to the
related Class of Certificates and Related Lower-Tier Regular Interest pursuant
to this paragraph to such Class and Related Lower-Tier Regular Interest.
On each Distribution Date occurring on or after the Crossover Date, the
Principal Distribution Amount will be distributed to the Class A-1A and Class
A-1B Certificates, pro rata, based on their respective Certificate Balances, in
reduction of their respective Certificate Balances, until the Certificate
Balance of each such Class is reduced to zero, and any unreimbursed amounts of
Realized Losses previously allocated to such classes, if available, will be
distributed pro rata based on their respective Certificate Balances.
All references to pro rata in the preceding clauses with respect to
interest and Class Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) (i) On each Distribution Date, following the distribution from the
Distribution Account in respect of the Lower-Tier Regular Interests pursuant to
Section 4.01(c)(ii), the Paying Agent shall make distributions of any Prepayment
Premiums with respect to any Principal Prepayments received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(c) in the following amounts (as additional payments and
not as payments of interest and principal due thereunder) and order of priority,
with respect to the Certificates of each Class in each case to the extent
remaining amounts of Prepayment Premiums are available therefor:
(I) First, to the Class PS-1 Certificates, an amount equal
to (A) the present value (discounted at the Discount
Rate for the Class PS-1 Certificates plus the Spread
Rate for the Class PS-1 Certificates) of the aggregate
interest that would have been paid in respect of the
Class PS-1 Certificates from the Distribution Date
occurring in the following month until the Notional
Balance of the Class PS-1 Certificates would have been
reduced to zero had the related prepayment not
occurred, minus (B) the present value (discounted at
the Discount Rate for the Class PS-1 Certificates plus
the Spread Rate for the Class PS-1 Certificates) of the
aggregate interest that will be paid in respect of
Class PS-1 Certificates from the Distribution Date
occurring in the following month until the Notional
Balance of the Class PS-1 Certificates is reduced to
zero following such prepayment (assuming no further
prepayments are made except that all Mortgage Loans
prepay on Anticipated Repayment Dates where
applicable);
(II) Second, to the Class A-1A Certificates, an amount equal
to (A) the present value (discounted at the Discount
Rate for the Class A-1A Certificates plus the Spread
Rate for the Class A-1A Certificates) of the aggregate
principal and interest that would have been paid in
respect of the Class A-1A Certificates from the
Distribution Date occurring in the following month
until the Certificate Balance of the Class A-1A
Certificates would have been reduced to zero had the
related prepayment not occurred, minus the sum of (B)
the amount of such prepayment distributed in respect of
the Class A-1A Certificates and (C) the present value
(discounted at the Discount Rate for the Class A-1A
Certificates plus the Spread Rate for the Class A-1A
Certificates) of the aggregate principal and interest
that will be paid in respect of the Class A-1A
Certificates from the Distribution Date occurring in
the following month until the Certificate Balance of
the Class A-1A Certificates is reduced to zero
following such prepayment (assuming no further
prepayments are made except that all Mortgage Loans
prepay on Anticipated Repayment Dates where
applicable); and
(III)Third, to the Class A-1B Certificates, an amount equal
to (A) the present value (discounted at the Discount
Rate for the Class A-1B Certificates plus the Spread
Rate for the Class A-1B Certificates) of the aggregate
principal and interest that would have been paid in
respect of the Class A-1B Certificates from the
Distribution Date occurring in the following month
until the Certificate Balance of the Class A-1B
Certificates would have been reduced to zero had the
related prepayment not occurred, minus the sum of (B)
the amount of such prepayment distributed in respect of
the Class A-1B Certificates and (C) the present value
(discounted at the Discount Rate for the Class A-1B
Certificates plus the Spread Rate for the Class A-1B
Certificates) of the aggregate principal and interest
that will be paid in respect of the Class A-1B
Certificates from the Distribution Date occurring in
the following month until the Certificate Balance of
the Class A-1B Certificates is reduced to zero
following such prepayment (assuming no further
prepayments are made except that all Mortgage Loans
prepay on Anticipated Repayment Dates where
applicable).
In all clauses above, Prepayment Premiums will only be distributed on a
Distribution Date (i) if the respective Certificate Balance or Notional Balance
of the related Class or Classes is greater than zero on the last Business Day of
the Interest Accrual Period ending immediately prior to such Distribution Date
and (ii) if the amount computed pursuant to the related clause above is greater
than zero. Any Prepayment Premiums remaining following the distributions
described in the preceding clauses (I) through (III) shall be distributed to
holders of the Class B-6H Certificates regardless of whether the Certificate
Balance thereof has been reduced to zero.
Notwithstanding the foregoing, Prepayment Premiums shall be distributed on
any Distribution Date only to the extent they are received in respect of the
Mortgage Loans in the related Collection Period.
(ii) On each Distribution Date, prior to the distributions to the
Certificates from the Upper-Tier Distribution Account pursuant to Section
4.01(c)(i), the Lower-Tier Regular Interests shall receive distributions in
respect of Prepayment Premiums in proportion to their Certificate Balances.
(d) Intentionally deleted.
(e) The Certificate Balances of each Class of Regular Certificates (other
than the Class PS-1 Certificates) will be reduced without distribution on any
Distribution Date as a write-off to the extent of any Realized Losses allocated
to such Class with respect to such date. Any such write-offs will be applied to
Classes of Regular Certificates in the following order, in each case until the
Certificate Balance of such Class is reduced to zero: first, to the Class B-6
Certificates and Class B-6H Certificates, pro rata, based on their respective
Certificate Balances; second, to the Class B-5 Certificates; third, to the Class
B-4 Certificates, fourth, to the Class B-3 Certificates; fifth, to the Class B-2
Certificates; sixth, to the Class B-1 Certificates; seventh, to the Class A-5
Certificates; eighth, to the Class A-4 Certificates; ninth, to the Class A-3
Certificates; tenth, to the Class A-2 Certificates; and finally, to the Class
A-1A and Class A-1B Certificates, pro rata, based on their respective
Certificate Balances. Any amounts recovered in respect of amounts previously
written off as Realized Losses shall be distributed to the Classes of
Certificates described above in reverse order of allocation of Realized Losses
thereto. Shortfalls in Available Funds due to servicing or trustee compensation
other than the Servicing Fee and the Trustee Fee (including servicing
compensation resulting solely from interest on Advances (to the extent not
payable from Default Interest)), extraordinary expenses of the Trust Fund (other
than indemnification expenses), a reduction in the Mortgage Rate on a Mortgage
Loan by a bankruptcy court pursuant to a plan of reorganization or pursuant to
any of its equitable powers, or otherwise, shall be allocated in the same manner
as Realized Losses to the Certificates.
Realized Losses and such other amounts described above which are applied to
each Class of Certificates will be allocated to reduce the Certificate Balances
of the Related Lower-Tier Regular Interests and pro rata as between the Class
A-1A-L Interests based on their Certificate Balances.
(f) All amounts distributable to a Class of Certificates pursuant to this
Section 4.01 on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in each such Class based on their respective Percentage
Interests. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record on the related Record
Date by check mailed by first Class mail to the address set forth therefor in
the Certificate Register or, provided that such Holder shall have provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Holder at a bank or other entity located in the United
States and having appropriate facilities therefor. The final distribution on
each Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee, or, if the Class
A-1A, Class A-1B or Class A-2 Certificates are listed on the Luxembourg Stock
Exchange, at the offices of the Luxembourg Stock Exchange specified in the
notice to Holders of such final distribution.
(g) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it that the final distribution
with respect to such Class of Certificates will be made
on such Distribution Date, but only upon presentation
and surrender of such Certificates at the office of the
Trustee therein specified, and
(B) if such final distribution is made on such Distribution
Date, no interest shall accrue on such Certificates
from and after such Distribution Date;
provided, however, that the Class V-1, Class V-2, Class R and Class LR
Certificates shall remain outstanding until there is no other Class of
Certificates or Lower-Tier Regular Interests outstanding and the Class B-6H
Certificates shall be deemed to be outstanding so long as there are any Mortgage
Loans outstanding that provide for payments of Prepayment Premiums in connection
with voluntary or involuntary prepayments.
Any funds not distributed to any Holder or Holders of such Classes of
Certificates 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
in trust for the benefit of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section
4.01(g) 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 Holders to surrender their Certificates for cancellation
to receive the final distribution with respect thereto. If within one year after
the second notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Holders concerning surrender of
their Certificates. The costs and expenses of holding such funds in trust and of
contacting such Holders shall be paid out of such funds. If within two years
after the second notice any such Certificates shall not have been surrendered
for cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee hereunder and the transfer of such amounts to a successor Trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class R Certificateholders. No interest shall accrue or be payable to any Holder
on any amount held in trust hereunder or by the Trustee as a result of such
Holder's failure to surrender its Certificate(s) for final payment thereof in
accordance with this Section 4.01(g). Any such amounts transferred to the
Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(h) Notwithstanding any provision in this Agreement to the contrary, the
aggregate amount distributable to each Class pursuant to this Section 4.01 shall
be reduced by the aggregate amount paid to any Person pursuant to Section 6.03
or Section 8.05(b) and (d), such reduction to be allocated among such Classes
pro rata, based upon the respective amounts so distributable without taking into
account the provision of this Section 4.01(h). Such reduction of amounts
otherwise distributable to a Class shall be allocated first in respect of
interest and second in respect of principal. For purposes of determining Class
Interest Shortfalls and Certificate Balances, the amount of any such reduction
so allocated to a Class shall be deemed to have been distributed to such Class.
(i) The Certificate Balances of the Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates shall be notionally reduced on any Distribution Date to the extent
of any Delinquency Reduction Amounts or Appraisal Reduction Amounts with respect
to such Distribution Date; provided that (i) if a Delinquency and an Appraisal
Reduction Event occur with respect to the same Distribution Date and the same
Mortgage Loan, the reduction shall equal the Appraisal Reduction Amount, (ii)
following the occurrence of an Appraisal Reduction Event with respect to any
Mortgage Loan, no further Delinquency Reduction Amounts shall be applied with
respect to such Mortgage Loan and any Delinquency Reduction Amounts previously
applied shall be reversed and (iii) for any Distribution Date, the aggregate of
the Appraisal Reduction Amounts and Delinquency Reduction Amounts shall not
exceed the Certificate Balance (as adjusted by any notional reductions) of the
most subordinate Class of Certificates outstanding among the Class B-6, Class
B-5, Class B-4, Class B-3, Class B-2, Class B-1, Class A-5, Class A-4, Class A-3
and Class A-2 Certificates (and to the extent the aggregate of the Appraisal
Reduction Amounts and Delinquency Reduction Amounts exceeds such Certificate
Balance, such excess shall be applied, subject to any reversal described below,
to notionally reduce the next most subordinate Class of Certificates on the next
Distribution Date). Any such reductions shall be applied notionally, first, to
the Class B-6 and Class B-6H Certificates, second, to the Class B-5
Certificates, third, to the Class B-4 Certificates, fourth, to the Class B-3
Certificates, fifth, to the Class B-2 Certificates, sixth, to the Class B-1
Certificates, seventh, to the Class A-5 Certificates, eighth, to the Class A-4
Certificates, ninth, to the Class A-3 Certificates, and finally, to the Class
A-2 Certificates (provided in each case that no Certificate Balance in respect
of any such class shall be notionally reduced below zero). Any notional
reduction of the Certificate Balance of such Certificates as a result of any
Delinquency or Appraisal Reduction Event shall be reversed to the extent there
is a recovery of any or all of the Delinquency Amounts or a Realized Loss.
Additionally, a reversal or additional reduction shall occur to the extent that
the Servicer's Appraisal Estimate is less than or greater than the Appraisal
Reduction as adjusted to take into account a subsequent independent MAI
Appraisal. For purposes of calculating Interest Accrual Amounts, any such
reduction or reversal made on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been made on the first day of such
Interest Accrual Period.
(j) Shortfalls in Available Funds resulting from Prepayment Interest
Shortfalls in excess of Servicer Prepayment Interest Shortfalls shall be
allocated to and be deemed distributed to, each Class of Certificates, pro rata,
based upon the Class Interest Distribution Amount (plus the aggregate Reduction
Interest Distribution Amount, in the case of the Class PS-1 Certificates)
distributable to each such Class, and shall be allocated to each Class of
Lower-Tier Regular Interests in the same manner in which interest is allocated
pursuant to Section 4.01(a)(i). Servicer Prepayment Interest Shortfalls shall be
deposited by the Servicer into the Collection Account on or prior to the
Servicer Remittance Date.
Shortfalls in Available Funds resulting from indemnification expenses
pursuant to Section 6.03 shall be allocated to each Class of Certificates, pro
rata, based on amounts distributable to each Class and shall be allocated,
first, in respect of interest and, second, in respect of principal.
Indemnification expenses which are applied to each Class of Certificates shall
be allocated to interest or principal, as applicable, on the Lower-Tier Regular
Interests in the same manner that interest and principal are allocated pursuant
to Section 4.01(a)(i).
Prepayment Interest Shortfalls in excess of Servicer Prepayment Interest
Shortfalls shall be allocated prior to the allocation of indemnification
expenses.
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others.
(a) On each Distribution Date, based upon the information set forth in the
Servicer Remittance Report prepared by the Servicer and the Co-Servicer with
respect to the Equity Loans, and the other reports prepared by the Servicer, the
Co-Servicer and Special Servicer relating to such Distribution Date, and only to
the extent such information is provided to the Trustee by the Servicer, the
Co-Servicer or Special Servicer, the Trustee shall prepare and forward by first
class mail to each Certificateholder, each prospective investor in a Certificate
(upon request), with copies to the Depositor (and its attorneys, Cadwalader,
Wickersham & Taft, Attn.: Anna H. Glick), the Servicer, the Co-Servicer, the
Special Servicer, the Operating Advisor, each Underwriter, each Rating Agency,
the Luxembourg Paying Agent, the Luxembourg Stock Exchange (so long as the Class
A-1A, Class A-1B or Class A-2 Certificates are listed on such exchange, and, in
the case of the Split Notes, the Other Servicer, such information related to
such Split Note) 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) the Interest Accrual
Amount less any Prepayment Interest Shortfalls (in
excess of the Prepayment Interest Shortfalls paid by
the Servicer or Co-Servicer or indemnification expense
pursuant to Section 4.01(j)), (B) Prepayment Premiums
and/or (C) Reduction Interest Distribution Amounts;
(iii)the aggregate Certificate Balance or aggregate
Notional Balance, as the case may be, of each Class of
Certificates, before and after giving effect to the
distributions made on such Distribution Date,
separately identifying any reduction in the aggregate
Certificate Balance (or, if applicable, the aggregate
Notional Balance) of each such Class due to Realized
Losses and/or additional Trust Fund expenses;
(iv) the Pass-Through Rate and the Reduction Interest
Pass-Through Rate, if any, for each Class of
Certificates applicable to such Distribution Date;
(v) the number of outstanding Mortgage Loans and the
aggregate unpaid principal balance of the Mortgage
Loans at the close of business on the related Due Date;
(vi) the number and aggregate unpaid principal balance of
Mortgage Loans (A) delinquent one Collection Period,
(B) delinquent two Collection Periods, (C) delinquent
three or more Collection Periods, (D) that are
Specially Serviced Mortgage Loans that are not
delinquent, or (E) as to which foreclosure proceedings
have been commenced;
(vii)with respect to any REO Mortgage Loan as to which the
related Mortgaged Property became an REO Property
during the preceding calendar month, the Stated
Principal Balance and the unpaid principal balance of
such Mortgage Loan as of the date it became an REO
Mortgage Loan;
(viii) as to any Mortgage Loan repurchased by the Mortgage
Loan Seller or otherwise liquidated or disposed of
during the related Collection Period, (A) the Loan
Number of the related Mortgage Loan, (B) the amount of
proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any,
received thereon during the related Collection Period
and the portion thereof included in the Available Funds
for such Distribution Date, and (C) the date of Final
Recovery Determination;
(ix) 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 Mortgage Loan, (B)
the value of such REO Property based on the most recent
appraisal or valuation, and (C) the aggregate amount of
Net Income and other revenues collected by the Special
Servicer with respect to such REO Property during the
related Collection Period and the portion thereof
included in the Available Funds for such Distribution
Date;
(x) with respect to any REO Property sold or otherwise
disposed of during the related Collection Period and
for which a Final Recovery Determination has been made,
(A) the Loan Number of the related Mortgage Loan, (B)
the amount of sale proceeds and other amounts, if any,
received in respect of such REO Property during the
related Collection Period and the portion thereof
included in the Available Funds for such Distribution
Date and (C) the date of the Final Recovery
Determination;
(xi) the aggregate amount of Principal Prepayments (other
than Liquidation Proceeds and Insurance Proceeds) made
during the related Collection Period and any Prepayment
Interest Shortfall in excess of Servicer Prepayment
Interest Shortfall for such Distribution Date;
(xii)the amount of Property Advances and P&I Advances
outstanding (net of reimbursed Advances) which have
been made by the Servicer, the Co-Servicer, the Special
Servicer, the Trustee or the Fiscal Agent;
(xiii) the aggregate amount of Servicing Fees, Special
Servicing Fees and any other Special Servicing
Compensation retained by or paid to the Servicer and
the Special Servicer during the related Collection
Period;
(xiv)the amount of any Appraisal Reduction Amounts
allocated during the related Collection Period on a
loan-by-loan basis; the total Appraisal Reduction
Amounts allocated during the related Collection Period;
and the total Appraisal Reduction Amounts as of such
Distribution Date on a loan-by-loan basis;
(xv) the amount of Realized Losses incurred with respect to
the Mortgage Loans, Trust Fund expenses, Class Interest
Shortfalls, and Reduction Interest Shortfalls if any,
during the related Collection Period and in the
aggregate for all prior Collection Periods (except to
the extent reimbursed or paid); and
(xvi)the original and then-current ratings of the
Certificates, provided that the Rating Agencies shall
be required to provide the Trustee with notification of
any change, withdrawal, downgrade or qualification of
the ratings of the Certificates.
In the case of information furnished pursuant to subclauses (i), (ii) and
(iii) 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 by first class mail (or by other means of equal or greater expediency)
to each Certificateholder, each prospective investor in a Certificate (upon
request), the Depositor, the Servicer, the Co-Servicer, the Special Servicer,
the Operating Advisor, each Underwriter, each Rating Agency, the Luxembourg
Paying Agent and the Luxembourg Stock Exchange (so long as the Class A-1A, Class
A-1B and Class A-2 Certificates are listed on such exchange) a report containing
information regarding the Mortgage Loans as of the end of the related Collection
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 Mortgage
Loans set forth in the Prospectus under the caption "Description of the Mortgage
Pool--Certain Terms and Conditions of the Mortgage Loans" (calculated, where
applicable, on the basis of the most recent relevant information provided by the
Borrowers to the Servicer, the Co-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 (in descending balance
order) showing loan number, 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
Premiums received. Such report shall be made available electronically; provided,
however, that the Trustee or the Luxembourg Paying Agent will provide
Certificateholders 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 by first class mail (or by other means of equal or greater
expediency) to each Certificateholder, each prospective investor in a
Certificate (upon request), the Depositor, each Underwriter, each Rating Agency
and the Luxembourg Stock Exchange (so long as the Class A-1A, Class A-1B and
Class A-2 Certificates are listed on such exchange) a copy of the Comparative
Financial Status Report, the Delinquent Loan Status Report, the Historical Loss
Estimate Report, the Historical Loan Modification Report, the REO Status Report
and a Watch List provided by the Servicer to the Trustee pursuant to Section
3.13(c) and 3.13(e) on the Servicer Remittance Date. The information that
pertains to Specially Serviced Mortgage Loans and REO Properties reflected in
such reports shall be based solely upon the reports delivered by the Special
Servicer to the Servicer or the Co-Servicer, as applicable, at least one
Business Day prior to the related Servicer Remittance Date. Such reports shall
be made available electronically; provided, however, that the Trustee or the
Luxembourg Paying Agent will provide Certificateholders with a written copy of
such reports upon written request. Absent manifest error, (i) none of the
Servicer, the Co-Servicer, the Special Servicer, the Trustee or the Luxembourg
Paying Agent 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 Co-Servicer, the Special Servicer, the Trustee or the Luxembourg
Paying Agent, as applicable, (ii) the Trustee shall not be responsible for the
accuracy or completeness of any information supplied to it by the Servicer, the
Co-Servicer or Special Servicer that is included in any reports, statements,
materials or information prepared or provided by the Servicer, the Co-Servicer
or Special Servicer, as applicable, and (iii) the Trustee shall be entitled to
conclusively rely upon the Servicer's reports, the Co-Servicer's reports and the
Special Servicer's reports without any duty or obligation to recompute, verify
or re-evaluate any of the amounts or other information stated therein.
The information contained in the reports in the preceding paragraph of this
Section 4.02(c) shall be made available to the Trustee electronically by the
Servicer, and the Co-Servicer in the form of the standard CSSA Reports, and the
Trustee will in lieu of mailing such reports as described in such preceding
paragraph make such reports available electronically in such form to
Certificateholders using the media mutually agreed upon by the Trustee, the
Underwriter and the Depositor; provided, however, that the Trustee will continue
to provide Certificateholders with a written copy of such reports upon request
in the manner described in such preceding paragraph.
The Trustee shall deliver a copy of each Operating Statement Analysis
report and NOI Adjustment Worksheet that it receives from the Servicer to the
Depositor, each Underwriter and each Rating Agency promptly after its receipt
thereof. Upon request, the Trustee shall make such reports available to the
Certificateholders and the Special Servicer. Upon request, the Trustee shall
also make available any NOI Adjustment Worksheet for a Mortgaged Property or REO
Property in the possession of the Trustee to any Certificateholder or any
prospective investor in the Certificates.
(d) The Trustee shall make available at its offices, during normal business
hours, upon not less than two Business Days' prior notice, for review by any
Certificateholder, any prospective investor in a Certificate, the Depositor, the
Servicer, the Co-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 Mortgage 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 to the
extent it is aware that such disclosure is prohibited by the Mortgage Documents
provided that the Trustee shall have no obligation to review the Mortgage
Documents for such prohibition): (i) this Agreement and any amendments thereto;
(ii) all Distribution Date 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, the
Co-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 retail sales information, if any, collected by or on
behalf of the Servicer, the Co-Servicer or the Special Servicer in respect to
each Mortgaged Property; (vi) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Servicer, the Co-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, the
Co-Servicer's, the Trustee's or the Fiscal Agent'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 or the Co-Servicer, as applicable.
Copies of any and all of the foregoing items will be available from the Trustee
upon request. The Trustee will be permitted to require payment by the requesting
party of a sum sufficient to cover the reasonable costs and expenses of making
such information available and providing any copies thereof. The Trustee's
obligation under this Section 4.02(d) to make available any document is subject
to the Trustee's receipt of such document.
The Trustee shall provide access to the information in the Distribution
Date Statements referred to in Section 4.02(a) telephonically through the
Trustee's ASAP System, electronically through the Trustee's website or bulletin
board service or by such other mechanism as the Trustee may have in place from
time to time.
(e) On or within two Business Days following each Distribution Date, the
Trustee shall prepare and furnish to each Financial Market Publisher and each
Underwriter, using the format and media mutually agreed upon by the Trustee,
each Financial Market Publisher, each Underwriter and the Depositor, the
following information regarding each Mortgage Loan and any other information
reasonably requested by each Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) the Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by this Section 4.02 to the extent it receives the
necessary underlying information from the Servicer, the Co-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, the Co-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, the Co-Servicer or the Special Servicer to
disseminate information for such reason shall not be a breach hereof.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is non-U.S. Person that has
furnished or caused to be furnished (i) an effective Form W-8 or Form W-9 or an
acceptable substitute form or a successor form and who is not a "10-percent
shareholder" within the meaning of Code Section 871(h)(3)(B) or a "controlled
foreign corporation" described in Code Section 881(c)(3)(C) with respect to the
Trust Fund or the Depositor, or (ii) an effective Form 4224 or an acceptable
substitute form or a successor form. In the event the Paying Agent or its agent
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder for all purposes of this Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.04(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the Holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier REMIC for this purpose), together with such
additional information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code (and the
Depositor agrees within 10 Business Days of the Closing Date to provide any
information reasonably requested by the Servicer, the Special Servicer or the
Trustee and necessary to make such filing); and (vi) maintain such records
relating to each of the Upper-Tier REMIC and the Lower-Tier REMIC as may be
necessary to prepare the foregoing returns, schedules, statements or
information, such records, for federal income tax purposes, to be maintained on
a calendar year and on an accrual basis. The Holder of the largest Percentage
Interest in the Class R or Class LR Certificates shall be the tax matters person
of the Upper-Tier REMIC or the Lower-Tier REMIC, respectively, pursuant to
Treasury Regulations Section 1.860F-4(d). If more than one Holder should hold an
equal Percentage Interest in the Class R or Class LR Certificates larger than
that held by any other Holder, the first such Holder to have acquired such Class
R or Class LR Certificates shall be such tax matters person. The Trustee shall
act as attorney-in-fact and agent for the tax matters person of each of the
Upper-Tier REMIC and Lower-Tier REMIC, and each Holder of a Percentage Interest
in the Class R or Class LR Certificates, by acceptance hereof, is deemed to have
consented to the Trustee's appointment in such capacity and agrees to execute
any documents required to give effect thereto, and any fees and expenses
incurred by the Trustee in connection with any audit or administrative or
judicial proceeding shall be paid by the Trust Fund. The Trustee shall not
intentionally take any action or intentionally omit to take any action if, in
taking or omitting to take such action, the Trustee knows that such action or
omission (as the case may be) would cause the termination of the REMIC status of
the Upper-Tier REMIC or the Lower-Tier REMIC or the imposition of tax on the
Upper-Tier REMIC or the Lower-Tier REMIC (other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement).
Notwithstanding any provision of this paragraph to the contrary, the Trustee
shall not be required to take any action that the Trustee in good faith believes
to be inconsistent with any other provision of this Agreement, nor shall the
Trustee be deemed in violation of this paragraph if it takes any action
expressly required or authorized by any other provision of this Agreement, and
the Trustee shall have no responsibility or liability with respect to any act or
omission of the Depositor, the Servicer, the Co-Servicer or the Special Servicer
which does not enable the Trustee to comply with any of clauses (i) through (vi)
of the fifth preceding sentence or which results in any action contemplated by
clauses (i) or (ii) of the next succeeding sentence. In this regard the Trustee
shall (i) exercise reasonable care not to allow the occurrence of any
"prohibited transactions" within the meaning of Code Section 860F(a), unless the
party seeking such action shall have delivered to the Trustee an Opinion of
Counsel (at such party's expense) that such occurrence would not (A) result in a
taxable gain, (B) otherwise subject the Upper-Tier REMIC or Lower-Tier REMIC to
tax (other than a tax at the highest marginal corporate tax rate on net income
from foreclosure property), or (C) cause either the Upper-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC; and (ii) exercise reasonable
care not to allow the Trust Fund to receive income from the performance of
services or from assets not permitted under the REMIC Provisions to be held by a
REMIC (provided, however, that the receipt of any income expressly permitted or
contemplated by the terms of this Agreement shall not be deemed to violate this
clause). None of the Servicer, the Co-Servicer, the Special Servicer, the
Operating Advisor and the Depositor shall be responsible or liable (except in
connection with any act or omission referred to in the two preceding sentences)
for any failure by the Trustee to comply with the provisions of this Section
4.04. The Depositor, the Servicer, the Co-Servicer and the Special Servicer
shall cooperate in a timely manner with the Trustee in supplying any information
within the Depositor's, the Servicer's, the Co-Servicer's or the Special
Servicer's control (other than any confidential information) that is reasonably
necessary to enable the Trustee to perform its duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Servicer, the Co-Servicer, the
Depositor and the Class LR Certificateholders will exercise the right described
in Section 9.01 of this Agreement to cause early termination of the Trust Fund;
and (iii) no Mortgage Loan is repurchased by the Mortgage Loan Seller, the
Depositor or an Mortgage Loan Seller pursuant to Article II hereof.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from Available Funds sufficient funds to
pay or provide for the payment of, and to actually pay, such tax as is legally
owed by the Upper-Tier REMIC or Lower-Tier REMIC (but such authorization shall
not prevent the Trustee from contesting, at the expense of the Trust Fund, any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate or cause to be segregated, into a
separate non-interest bearing account, (i) the net income from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any contribution
to the Upper-Tier REMIC or Lower-Tier REMIC after the Startup Day that is
subject to tax under Code Section 860G(d) and use such income or amount, to the
extent necessary, to pay such tax (and return the balance thereof, if any, to
the Collection Account or the Upper-Tier Distribution Account, as the case may
be). To the extent that any such tax is paid to the IRS, the Trustee shall
retain an equal amount from future amounts otherwise distributable to the
Holders of the Class R or the Class LR Certificates as the case may be, and
shall distribute such retained amounts to the Holders of Regular Certificates or
Lower-Tier Regular Interests, as applicable, until they are fully reimbursed and
then to the Holders of the Class R Certificates or the Class LR Certificates, as
applicable. None of the Servicer, the Co-Servicer, the Special Servicer, the
Operating Advisor, nor the Trustee shall be responsible for any taxes imposed on
the Upper-Tier REMIC or Lower-Tier REMIC except to the extent such tax is
attributable to a breach of a representation or warranty of the Servicer, the
Co-Servicer, the Special Servicer or the Trustee or an act or omission of the
Servicer, the Co-Servicer, the Special Servicer or the Trustee in contravention
of this Agreement in both cases, provided, further, that such breach, act or
omission could result in liability under Section 6.03, in the case of the
Servicer or Section 4.04 or 8.01, in the case of the Trustee. Notwithstanding
anything in this Agreement to the contrary, in each such case, the Servicer, the
Co-Servicer or the Special Servicer shall not be responsible for Trustee's
breaches, acts or omissions, and the Trustee shall not be responsible for the
breaches, acts or omissions of the Servicer, the Co-Servicer or the Special
Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, the Monthly Payment (after giving effect to any
modification); provided, however, that for purposes of calculating the amount of
any P&I Advance required to be made by the Servicer, the Co-Servicer, the
Trustee or the Fiscal Agent, notwithstanding the amount of such Applicable
Monthly Payment, interest shall be calculated at the Mortgage Pass-Through Rate.
The Applicable Monthly Payment shall be reduced, for purposes of P&I Advances,
by any modifications pursuant to Section 3.30 or otherwise and by any reductions
by a bankruptcy court pursuant to a plan of reorganization or pursuant to any of
its equitable powers.
(b) On the Servicer Remittance Date immediately preceding each Distribution
Date:
(i) the Servicer and the Co-Servicer shall remit to the
Trustee for deposit in the Distribution Account an
amount equal to the Prepayment Premiums received by
the Servicer, the Co-Servicer or Special Servicer in
the Collection Period preceding such Distribution
Date;
(ii) the Servicer and the Co-Servicer shall remit to the
Trustee for deposit in the Distribution Account an
amount equal to the aggregate of the Available Funds
(other than P&I Advances), the Trustee Fee and
Subordinate Class Advance Recoveries for such
Distribution Date; and
(iii) the Servicer or the Co-Servicer, as applicable, shall
make a P&I Advance by depositing into the
Distribution Account, in an amount equal to the sum
of the Applicable Monthly Payments for each Mortgage
Loan to the extent such amounts were not received on
such Mortgage Loan as of the close of business on the
immediately preceding Determination Date, unless
related recoveries are received by the close of
business on the day prior to the Servicer Remittance
Date (and therefore are not included in the
remittance described in the preceding clause (ii)).
(c) Intentionally Left Blank.
(d) Notwithstanding Section 4.06(b)(iii), the Servicer or the Co-Servicer,
as applicable, shall (i) make only one full Advance in respect of each Mortgage
Loan pursuant to such Section in respect of the most subordinate Class of
Certificates then outstanding unless the related Delinquency is cured prior to
the following Due Date and (ii) not make any P&I Advance in respect of Reduction
Interest Distribution Amounts and Reduction Interest Shortfalls, and
accordingly, the Servicer or the Co-Servicer, as applicable, may reduce the
aggregate amount of P&I Advances to be deposited by the Servicer or the
Co-Servicer, as applicable, on the related Servicer Remittance Date in respect
of such amounts the Servicer or the Co-Servicer, as applicable, is not required
to advance. For purposes of clause (i) of the preceding sentence, the Servicer
or the Co-Servicer, as applicable, shall reduce the aggregate amount of the P&I
Advance it would otherwise be required to make with respect to any Mortgage
Loans that have had more than one uncured Delinquency by the lesser of (a) the
total amount that would be distributable to the most subordinate outstanding
Class in respect of all Mortgage Loans on such Distribution Date if the Servicer
were to make a full P&I Advance and (b) the amount of the delinquent Monthly
Payment on such Mortgage Loans. In the event that there is more than one
Mortgage Loan that has had more than one uncured Delinquency as of any Servicer
Remittance Date and the amount determined pursuant to clause (b) of the
preceding sentence exceeds the amount determined pursuant to clause (a) thereof,
the P&I Advance that the Servicer or the Co-Servicer, as applicable, makes in
respect of such Mortgage Loans (i.e., the amount by which clause (b) exceeds
clause (a)) will be deemed to have been made in respect of such delinquent
Monthly Payment, pro rata in accordance with the amounts of any such delinquent
Monthly Payments. (The first P&I Advance made by the Servicer or the
Co-Servicer, as applicable, in respect of a Mortgage Loan shall be deemed to be
in respect of the most subordinate Class for purposes of clause (i) of the first
sentence of this paragraph.) In addition, on any Servicer Remittance Date on
which the Servicer or the Co-Servicer, as applicable, is not required to make a
P&I Advance for the benefit of the most subordinate Class as described above,
the Servicer or the Co-Servicer, as applicable, shall initially make such P&I
Advance (for accounting purposes only) and shall, immediately subsequent to the
making of the P&I Advance on such Servicer Remittance Date, be reimbursed for
such P&I Advance from amounts otherwise distributable to such most subordinate
Class on the related Distribution Date (such amount of reimbursement or any
amount not advanced by the Servicer or the Co-Servicer, as applicable, which, if
advanced, could have been so reimbursed, the "Subordinate Class Advance
Amount"). The Trustee shall provide to the Servicer and the Co-Servicer written
statements one Business Day prior to the Servicer Remittance Date listing (i)
the aggregate Reduction Interest Distribution Amounts and Reduction Interest
Shortfalls for such Distribution Date and (ii) the distribution due to the
Holders of the most subordinate Class of Certificates.
(e) The Servicer and the Co-Servicer shall not be required or permitted to
make an advance for Excess Interest or Default Interest. The amount required to
be advanced by the Servicer or the Co-Servicer, as applicable, in respect of
Applicable Monthly Payments on Mortgage Loans that have been subject to an
Appraisal Reduction Event will equal the product of (i) the amount required to
be advanced by the Servicer or the Co-Servicer, as applicable, without giving
effect to such Appraisal Reduction Amounts and (ii) a fraction, the numerator of
which is the Stated Principal Balance of the Mortgage Loan (as of the last day
of the related Collection Period) less any Appraisal Reduction Amounts thereof
and the denominator of which is the Stated Principal Balance (as of the last day
of the related Collection Period). The amount to be advanced by the Servicer or
the Co-Servicer, as applicable, in respect of any Mortgage Loan on any
Distribution Date shall be reduced by the greater of the reduction in respect of
any Appraisal Reduction Event and the reduction described in clause (d)(i)
above.
(f) Any amount advanced by the Servicer or the Co-Servicer, as applicable,
pursuant to Section 4.06(b)(iii) shall constitute a P&I Advance for all purposes
of this Agreement and the Servicer shall be entitled to reimbursement (with
interest at the Advance Rate) thereof to the full extent as otherwise set forth
in this Agreement.
(g) If as of 11:00 a.m., New York City time, on any Distribution Date the
Servicer or the Co-Servicer, as applicable, shall not have made the P&I Advance
required to have been made on the related Servicer Remittance Date pursuant to
Section 4.06(b)(iii), the Trustee shall immediately notify the Fiscal Agent by
telephone promptly confirmed in writing, and the Trustee shall no later than
12:00 noon, New York City time, on such Business Day deposit into the
Distribution Account in immediately available funds an amount equal to the P&I
Advances otherwise required to have been made by the Servicer or the
Co-Servicer, as applicable. If the Trustee fails to make any P&I Advance
required to be made under this Section 4.06, the Fiscal Agent shall make such
P&I Advance not later than 2:00 p.m., New York City time, on such Business Day
and, thereby, the Trustee shall not be in default under this Agreement.
(h) None of the Servicer, the Co-Servicer, the Trustee or the Fiscal Agent
shall be obligated to make a P&I Advance as to any Monthly Payment on any date
on which a P&I Advance is otherwise required to be made by this Section 4.06 if
the Servicer, the Co-Servicer, the Trustee or Fiscal Agent, as applicable,
determines that such advance will be a Nonrecoverable Advance. The Servicer or
the Co-Servicer, as applicable, shall be required to provide notice to the
Trustee and the Fiscal Agent on or prior to the Servicer Remittance Date of any
such non-recoverability determination made on or prior to such date. The Trustee
and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Servicer or the Co-Servicer, as applicable, that a P&I
Advance, if made, would be a Nonrecoverable Advance; provided, however, that if
the Servicer or the Co-Servicer, as applicable, has failed to make a P&I Advance
for reasons other than a determination by the Servicer or the Co-Servicer, as
applicable, that such Advance would be a Nonrecoverable Advance, the Trustee or
Fiscal Agent, as applicable, shall make such advance within the time periods
required by Section 4.06(g) unless the Trustee or the Fiscal Agent, in good
faith, makes a determination prior to the times specified in Section 4.06(g)
that such advance would be a Nonrecoverable Advance. The Trustee and the Fiscal
Agent, in determining whether or not an Advance previously made is, or a
proposed Advance, if made, would be, a Nonrecoverable Advance shall be subject
to the standards applicable to the Servicer and the Co-Servicer hereunder.
(i) The Servicer, the Co-Servicer, the Trustee or the Fiscal Agent, as
applicable, shall be entitled to the reimbursement of P&I Advances it makes to
the extent permitted pursuant to Section 3.06(ii) of this Agreement together
with any related Advance Interest Amount in respect of such P&I Advances to the
extent permitted pursuant to Section 3.06(iii) and the Servicer, Co-Servicer and
Special Servicer hereby covenant and agree to promptly seek and effect the
reimbursement of such Advances from the related Borrowers to the extent
permitted by applicable law and the related Mortgage Loan.
SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of (i)
the Default Interest and the Default Interest Distribution Account, (ii) the
Excess Interest and the Excess Interest Distribution Account, (iii) Repurchase
Return of Premium Amounts, (iv) the Post-Lock Out Return of Premium Amounts, (v)
the Repurchase Price Return of Premium Distribution Account, and (vi) the
Post-Lock Out Return of Premium Distribution Account shall constitute, and that
the affairs of the Trust Fund (exclusive of the Trust REMICs) shall be conducted
so as to qualify such portion 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 shall furnish or cause to be
furnished information (i) as to the Class V-1 Certificateholders, income with
respect to their applicable share of Default Interest and the amount of any
interest on unreimbursed Advances payable to the Servicer, the Co-Servicer, the
Trustee and the Fiscal Agent, as applicable, therefrom pursuant to Section
3.06(iii), (ii) as to the Class V-2 Certificateholders, the Excess Interest
accrued thereon, (iii) as to the Class PS-1 Certificateholders, the Repurchase
Return of Premium Amounts distributable thereto, and (iv) as to the Depositor,
the Post-Lock Out Return of Premium Amounts distributable thereto, and shall
file or cause to be filed with the IRS such information, together with Form 1041
or such other form as may be applicable, at the time or times and in the manner
required by the Code.
<PAGE>
ARTICLE V
THE CERTIFICATES
SECTION 5.01.The Certificates.
(a) The Certificates consist of the Class A-1A Certificates, the Class A-1B
Certificates, the Class PS-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates, the Class A-4 Certificates, the Class A-5 Certificates, the
Class B-1 Certificates, the Class B-2 Certificates, the Class B-3 Certificates,
the Class B-4 Certificates, the Class B-5 Certificates, the Class B-6
Certificates, the Class B-6H Certificates, the Class V-1 Certificates, the Class
V-2 Certificates, the Class R Certificates and the Class LR Certificates.
The Class A-1A, Class A-1B, Class PS-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-6H, Class V-1, Class V-2, Class R and Class LR Certificates will be
substantially in the forms annexed hereto as Exhibits A-1 through A-18, as set
forth in the Table of Exhibits hereto. The Certificates of each Class will be
issuable in registered form only, in minimum denominations of authorized
Certificate Balance or Notional Balance, as applicable, as described in the
succeeding table, and multiples of $1 in excess thereof (or such lesser amount
if the Certificate or Notional Balance, as applicable, is not a multiple of $1).
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) in the case of any Global Certificate, set forth on a schedule attached
thereto or, in the case of any beneficial interest in a Global Certificate, the
amount set forth on the books and records of the related Participant or Indirect
Participant, as applicable, (ii) expressed in terms of Initial Certificate
Balance or Notional Balance, as applicable, and (iii) be in an authorized
denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
----- ------------ ---------------------
A-1A $ 50,000.00 $ 264,500,000.00
A-1B $ 50,000.00 $ 632,244,698.00
PS-1 $ 50,000.00 $1,245,617,638.00
A-2 $ 50,000.00 $ 62,280,882.00
A-3 $ 50,000.00 $ 68,508,970.00
A-4 $ 50,000.00 $ 59,166,838.00
A-5 $ 50,000.00 $ 21,798,308.00
B-1 $100,000.00 $ 31,140,441.00
B-2 $100,000.00 $ 28,026,397.00
B-3 $100,000.00 $ 15,570,220.00
B-4 $100,000.00 $ 24,912,353.00
B-5 $100,000.00 $ 15,570,221.00
B-6 $ 50,000.00 $ 21,797,309.00
B-6H $ 1,000.00 $ 1,000.00
Each Certificate will share ratably Class Denomination in all rights of the
relateds Class. The Class B-6H Certificates shall be issuable in a single,
registered definitive physical certificate evidencing its aggregate initial
Certificate Balance. The Class V-1, Class V-2, Class R and LR Certificates will
each be issuable in one or more registered, definitive physical certificates in
minimum denominations of 5% Percentage Interests and integral multiples of a 1%
Percentage Interest in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the same
benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the Trust
Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.22 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Beneficial Owners the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Certificateholders and
the Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of Global Certificates shall not be entitled to
physical certificates for the Global Certificates as to which they are the
Beneficial Owners. Requests and directions from, and votes of, the Depository as
Holder of the Global Certificates shall not be deemed inconsistent if they are
made with respect to different Beneficial Owners. Subject to the restrictions on
transfer set forth in Section 5.02 and Applicable Procedures, the holder of a
beneficial interest in a Private Global Certificate may request that the
Depositor, or an agent thereof, cause the Depository (or any Agent Member) to
notify the Certificate Registrar and the Certificate Custodian in writing of a
request for transfer or exchange of such beneficial interest for an Individual
Certificate or Certificates. Upon receipt of such a request and payment by the
related Beneficial Owner of any attendant expenses, the Depositor shall cause
the issuance and delivery of such Individual Certificates. The Certificate
Registrar may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and give notice
to the Depository of such record date. Without the written consent of the
Depositor and the Certificate Registrar, no Global Certificate may be
transferred by the Depository except to a successor Depository that agrees to
hold the Global Certificates for the account of the Beneficial Owners.
(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.
(d) The Global Certificates (i) shall be delivered by the Certificate
Registrar to the Depository or, pursuant to the Depository's instructions on
behalf of the Depository to, and deposited with, the Certificate Custodian, and
in either case shall be registered in the name of Cede & Co. and (ii) shall bear
a legend substantially to the following effect:
"Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Certificate Registrar for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein."
The Global 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 (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Trustee is unable to locate a qualified
successor, (ii) the Depositor or the Trustee, at its sole option, elects to
terminate the book-entry system through the Depository with respect to all or
any portion of any Class of Certificates or (iii) after the occurrence of an
Event of Default, Beneficial Owners owning not less than a majority in
Certificate Balance or Notional Balance, as applicable, of the Global
Certificate for any Class then outstanding advise the Depository through
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Beneficial Owner
or Owners of such Global Certificate, the Trustee or the Luxembourg Paying Agent
shall notify the affected Beneficial Owner or Owners through the Depository of
the occurrence of such event and the availability of Individual Certificates to
such Beneficial Owners requesting them. Upon surrender to the Trustee of Global
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall issue the
Individual Certificates. None of the Trustee, the Fiscal Agent, the Certificate
Registrar, the Servicer, the Co-Servicer, the Special Servicer or the Depositor
shall be liable for any actions taken by the Depository or its nominee,
including, without limitation, any delay in delivery of such instructions. Upon
the issuance of Individual Certificates, the Trustee, the Fiscal Agent, the
Certificate Registrar, the Servicer, the Co-Servicer, the Special Servicer, and
the Depositor shall recognize the Holders of Individual Certificates as
Certificateholders hereunder.
(f) If the Trustee, its agents or the Servicer, Co-Servicer or Special
Servicer 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, the Servicer, the Co-Servicer or the Special
Servicer has been advised by counsel that in connection with such proceeding it
is necessary or appropriate for the Trustee, the Servicer, the Co-Servicer or
the Special Servicer to obtain possession of the Certificates, the Trustee, the
Servicer, the Co-Servicer or the Special Servicer may in its sole discretion
determine that the Certificates represented by the Global Certificates shall no
longer be represented by such Global Certificates. In such event, the Trustee or
the Authenticating Agent will execute and authenticate and the Certificate
Registrar will deliver, in exchange for such Global Certificates, Individual
Certificates (and if the Trustee or the Certificate Custodian has in its
possession Individual Certificates previously executed, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver such Certificates)
in a Denomination equal to the aggregate Denomination of such Global
Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d) of the
Exchange Act, the Trustee shall make available to each Holder of a Class B-6,
Class B-6H, Class V-1, Class V-2, Class R or Class LR Certificate, upon request
of such a Holder, information substantially equivalent in scope to the
information currently filed by the Servicer with the Commission pursuant to the
Exchange Act, plus such additional information required to be provided for
securities qualifying for resales under Rule 144A under the Act, all of which
information referred to in this paragraph shall be provided on a timely basis to
the Trustee by the Servicer.
For so long as the Class B-6, Class B-6H, Class V-1, Class V-2, Class R or
Class LR Certificates remain outstanding, neither the Depositor nor the Trustee
nor the Certificate Registrar shall take any action which would cause the Trust
Fund to fail to be subject to Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar form, and
each Certificate shall, upon original issue, be executed and authenticated by
the Trustee or the Authenticating Agent and delivered to the Depositor. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-20 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.
SECTION 5.02. Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate Trust
Office books (the "Certificate Register") for the registration, transfer and
exchange of Certificates (the Trustee, in such capacity, being the "Certificate
Registrar"). 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 the
individual Participants holding beneficial interests in the Trust Fund through
the Depository. 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 Depositor, the Certificate Registrar, the Servicer, the
Co-Servicer, the Special Servicer, the Trustee, the Fiscal Agent, any Paying
Agent and any agent of any of them shall not be affected by any notice or
knowledge to the contrary. An Individual Certificate is transferable or
exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at the Corporate Trust Office together with an assignment and transfer
(executed by the Holder or his duly authorized attorney), subject to the
requirements of Sections 5.02(c), (d), (e), (f), (g) and (h). Upon request of
the Trustee, the Certificate Registrar shall provide the Trustee with the names,
addresses and Percentage Interests of the Holders.
Neither the Trustee nor the Certificate Registrar shall have any obligation
or duty to monitor, determine or inquire as to compliance with any restriction
or transfer imposed under Article 5 of this Agreement or under applicable law
with respect to any transfer of any Certificate, or any interest therein, other
than to require delivery of the certification(s) and/or opinions of counsel
described in Article 5 applicable with respect to changes in registration of
record ownership of Certificates in the Certificate Register. The Trustee and
the Certificate Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depository or between or
among Depository participants or Beneficial Owners made in violation of
applicable restrictions.
(b) Upon surrender for registration of transfer of any Individual
Certificate (other than an initial transfer to an Affiliate of the Depositor),
subject to the requirements of Sections 5.02(c), (d), (e), (f), (g), (h) and
(i), the Trustee 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
Individual 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
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.02(d), (e), (f), (g) and
(h) and the rules of the Depository; the exchange, transfer and registration of
transfer of Individual Certificates or beneficial interests in the Private
Global Certificates shall be subject to the following restrictions:
(i) Transfers between Holders of Individual Certificates. With respect to
the transfer and registration of transfer of an Individual Certificate
representing an interest in the Class B-6, Class B-6H, Class V-1,
Class V-2, Class R or Class LR Certificates to a transferee that takes
delivery in the form of an Individual Certificate:
(A) The Certificate Registrar shall register the transfer of an
Individual Certificate if the requested transfer is being made by a
transferee who has provided the Certificate Registrar with an
Investment Representation Letter substantially in the form of Exhibit
D-1 hereto (an "Investment Representation Letter"), to the effect that
the transfer is being made to a Qualified Institutional Buyer in
accordance with Rule 144A;
(B) The Certificate Registrar shall register the transfer of an
Individual Certificate pursuant to Regulation S after the expiration
of the Restricted Period if (1) the transferor has provided the
Certificate Registrar with a Regulation S Transfer Certificate
substantially in the form of Exhibit I hereto (a "Regulation S
Transfer Certificate"), and (2) the transferee furnishes to the
Certificate Registrar an Investment Representation Letter; and
(C) The Certificate Registrar shall register the transfer of an
Individual Certificate if prior to the transfer such transferee
furnishes to the Certificate Registrar (1) an Investment
Representation Letter to the effect that the transfer is being made to
an Institutional Accredited Investor or to an Affiliated Person in
accordance with an applicable exemption under the Act, and (2) an
Opinion of Counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case, the Certificate Registrar shall register the
transfer of an Individual Certificate only if prior to the transfer
the transferee furnishes to the Certificate Registrar a written
undertaking by the transferor to reimburse the Trust for any costs
incurred by it in connection with the proposed transfer. In addition,
the Certificate Registrar may, as a condition of the registration of
any such transfer, require the transferor to furnish such other
certificates, legal opinions or other information (at the transferor's
expense) as the Certificate Registrar may reasonably require to
confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates. Notwithstanding any
provision to the contrary herein, so long as a Private Global
Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall
only be made in accordance with this Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global
Certificate During the Restricted Period. If, during the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest in
such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such Beneficial Owner may, in
addition to complying with all applicable rules and procedures of the
Depository and Cedel or Euroclear applicable to transfers by their
respective participants (the "Applicable Procedures"), transfer or
cause the transfer of such beneficial interest for an equivalent
beneficial interest in such Regulation S Global Certificate only upon
compliance with the provisions of this Section 5.02(c)(ii)(A). Upon
receipt by the Certificate Registrar at the Corporate Trust Office of
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to another specified Agent Member's
account a beneficial interest in the Regulation S Global Certificate
in an amount equal to the Denomination of the beneficial interest in
the Rule 144A Global Certificate to be transferred, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member and the
Euroclear or Cedel account, as the case may be, to be credited with,
and the account of the Agent Member to be debited for, such beneficial
interest, and (3) a certificate in the form of Exhibit J hereto given
by the Beneficial Owner of such interest, the Certificate Registrar
shall instruct the Depository or the Certificate Custodian, as
applicable, to reduce the Denomination of the Rule 144A Global
Certificate by the Denomination of the beneficial interest in the Rule
144A Global Certificate to be so transferred and, concurrently with
such reduction, to increase the Denomination of the Regulation S
Global Certificate by the Denomination of the beneficial interest in
the Rule 144A Global Certificate to be so transferred, and to credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be an Agent Member acting for or on behalf of
Euroclear or Cedel, or both, as the case may be) a beneficial interest
in the Regulation S Global Certificate having a Denomination equal to
the amount by which the Denomination of the Rule 144A Global
Certificate was reduced upon such transfer.
(B) Rule 144A Global Certificate to Regulation S Global
Certificate After the Restricted Period. If, after the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest in
such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the
transfer of such beneficial interest for an equivalent beneficial
interest in such Regulation S Global Certificate only upon compliance
with the provisions of this Section 5.02(c)(ii)(B). Upon receipt by
the Certificate Registrar at the Corporate Trust Office of (1) written
instructions given in accordance with the Applicable Procedures from
an Agent Member directing the Certificate Registrar to credit or cause
to be credited to another specified Agent Member's account a
beneficial interest in the Regulation S Global Certificate in an
amount equal to the Denomination of the beneficial interest in the
Rule 144A Global Certificate to be transferred, (2) a written order
given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member and, in the case
of a transfer pursuant to and in accordance with Regulation S, the
Euroclear or Cedel account, as the case may be, to be credited with,
and the account of the Agent Member to be debited for, such beneficial
interest, and (3) a certificate in the form of Exhibit K hereto given
by the Beneficial Owner of such interest, the Certificate Registrar
shall instruct the Depository or the Certificate Custodian, as
applicable, to reduce the Denomination of the Rule 144A Global
Certificate by the aggregate Denomination of the beneficial interest
in the Rule 144A Global Certificate to be so transferred and,
concurrently with such reduction, to increase the Denomination of the
Regulation S Global Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Global Certificate to be so
transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Regulation S Global Certificate having a Denomination equal to the
amount by which the Denomination of the Rule 144A Global Certificate
was reduced upon such transfer.
(C) Regulation S Global Certificate to Rule 144A Global
Certificate. If the Beneficial Owner of an interest in a Regulation S
Global Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Global Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest
in the related Rule 144A Global Certificate, such Beneficial Owner
may, in addition to complying with all Applicable Procedures, transfer
or cause the transfer of such beneficial interest for an equivalent
beneficial interest in such Rule 144A Global Certificate only upon
compliance with the provisions of this Section 5.02(c)(ii)(C). Upon
receipt by the Certificate Registrar at the Corporate Trust Office of
(1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to another specified Agent Member's
account a beneficial interest in the Rule 144A Global Certificate in
an amount equal to the Denomination of the beneficial interest in the
Regulation S Global Certificate to be transferred, (2) a written order
given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited
with, and the account of the Agent Member or, if such account is held
for Euroclear or Cedel, the Euroclear or Cedel account, as the case
may be, to be debited for, such beneficial interest, and (3) with
respect to a transfer of a beneficial interest in a Regulation S
Global Certificate for a beneficial interest in the related Rule 144A
Global Certificate (i) during the Restricted Period, a certificate in
the form of Exhibit L hereto given by the holder of such beneficial
interest or (ii) after the Restricted Period, an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, the Certificate
Registrar shall instruct the Depository or the Certificate Custodian,
as applicable, to reduce the Denomination of the Regulation S Global
Certificate by the aggregate Denomination of the beneficial interest
in the Regulation S Global Certificate to be transferred, and,
concurrently with such reduction, to increase the Denomination of the
Rule 144A Global Certificate by the aggregate Denomination of the
beneficial interest in the Regulation S Global Certificate to be so
transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in
such Rule 144A Global Certificate having a Denomination equal to the
amount by which the Denomination of the Regulation S Global
Certificate was reduced upon such transfer.
(iii)Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global Certificate
to a transferee wishing to take delivery in the form of an Individual
Certificate will require the transferee to take delivery subject to
the restrictions on the transfer of such Individual Certificate
described in the Securities Legend, and such transferee agrees that it
will transfer such Individual Certificate only as provided therein and
herein. No such transfer shall be made and the Certificate Registrar
shall not register any such transfer unless such transfer is made in
accordance with this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will require
delivery in the form of an Individual Certificate and the Certificate
Registrar shall register such transfer only upon compliance with the
provisions of Section 5.02(c)(i)(C).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a Regulation S
Investor wishing to take delivery in the form of an Individual
Certificate will be registered by the Certificate Registrar only upon
compliance with the provisions of Sections 5.02(c)(i)(A) and (B),
respectively.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Global Certificate to an Individual
Certificate pursuant to subparagraph (B) above shall be made prior to
the expiration of the Restricted Period.
Upon acceptance for exchange or transfer of a beneficial interest in a
Private Global Certificate for an Individual Certificate, as provided
herein, the Certificate Registrar shall endorse on the schedule affixed to
the related Private Global Certificate (or on a continuation of such
schedule affixed to such Private Global 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 Private Global
Certificate equal to the Denomination of such Individual Certificate issued
in exchange therefor or upon transfer thereof. Unless determined otherwise
by the Certificate Registrar in accordance with applicable law, an
Individual Certificate issued upon transfer of or exchange for a beneficial
interest in the Private Global Certificate shall bear the Securities
Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual 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 related
Regulation S Global Certificate or the related Rule 144A Global
Certificate, such transfer may be effected only in accordance with the
Applicable Procedures and this Section 5.02(c)(iv). Upon receipt by
the Certificate Registrar at the Corporate Trust Office of (1) the
Individual Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(a), (2) written instructions given
in accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be credited
to another specified Agent Member's account a beneficial interest in
such Regulation S Global Certificate or such Rule 144A Global
Certificate, as the case may be, in an amount equal to the
Denomination of the Individual Certificate to be so transferred, (3) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member and,
in the case of any transfer pursuant to Regulation S, the Euroclear or
Cedel account, as the case may be, to be credited with such beneficial
interest, and (4) (x) an Investment Representation Letter from the
transferee and, if delivery is to be taken in the form of a beneficial
interest in the Regulation S Global Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer if delivery is to be
taken in the form of a beneficial interest in the Rule 144A Global
Certificate, the Certificate Registrar shall cancel such Individual
Certificate, execute and deliver a new Individual Certificate for the
Denomination of the Individual 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 as the Certificate Custodian, as applicable,
to increase the Denomination of the Regulation S Global Certificate or
the Rule 144A Global Certificate, as the case may be, by the
Denomination of the Individual Certificate to be so transferred, and
to credit or cause to be credited to the account of the Person
specified in such instructions who, in the case of any increase in the
Regulation S Global Certificate during the Restricted Period, shall be
an Agent Member acting for or on behalf of Euroclear or Cedel, or
both, as the case may be, a corresponding Denomination of the Rule
144A Global Certificate or the Regulation S Global Certificate, as the
case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional
Buyer take delivery in the form of a beneficial interest in a Private
Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates, an
exchange of an Individual Certificate or Certificates for a beneficial
interest in a Private Global Certificate and an exchange of an
Individual Certificate or Certificates for another Individual
Certificate or Certificates (in each case, whether or not such
exchange is made in anticipation of subsequent transfer, and, in the
case of the Private Global Certificates, so long as the Private Global
Certificates remain outstanding and are held by or on behalf of the
Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable
Procedures.
(d) If Certificates are issued upon the transfer, exchange or replacement
of Certificates not bearing the Securities Legend, the Certificates so issued
shall not bear the Securities Legend. If Certificates are issued upon the
transfer, exchange or replacement of Certificates bearing the Securities Legend,
or if a request is made to remove the Securities Legend on a Certificate, the
Certificates so issued shall bear the Securities Legend, or the Securities
Legend shall not be removed, as the case may be, unless there is delivered to
the Certificate Registrar such satisfactory evidence, which may include an
Opinion of Counsel (at the expense of the party requesting the removal of such
legend) familiar with United States securities laws, as may be reasonably
required by the Certificate Registrar, that neither the Securities Legend nor
the restrictions on transfers set forth therein are required to ensure that
transfers of any Certificate comply with the provisions of Rule 144A or Rule 144
under the Act or that such Certificate is not a "restricted security" within the
meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence,
the Certificate Registrar shall execute and deliver a Certificate that does not
bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the Holder of any Individual 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 Corporate Trust Office or
at the office of any transfer agent appointed as provided under this Agreement,
together with an instrument of assignment or transfer (executed by the Holder or
its duly authorized attorney), in the case of transfer, and a written request
for exchange, in the case of exchange. Following a proper request for transfer
or exchange, the Certificate Registrar shall, within five Business Days of such
request if made at such Corporate Trust Office or within ten Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at the Corporate Trust 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, an
Individual Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the Corporate Trust Office or at
the office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of fifteen days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual Certificate issued
in exchange for a beneficial interest in a Public Global Certificate pursuant to
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors, as described herein. In the event that a
Responsible Officer of the Certificate Registrar becomes aware that such an
Individual Certificate or beneficial interest in a Private Global Certificate is
being held by or for the benefit of a Person who is not an Eligible Investor, or
that such holding is unlawful under the laws of a relevant jurisdiction, then
the Certificate Registrar shall have the right to void such transfer, if
permitted under applicable law, or to require the investor to sell such
Individual Certificate or beneficial interest in a Private Global Certificate to
an Eligible Investor within fourteen days after notice of such determination and
each Certificateholder by its acceptance of a Certificate authorizes the
Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding transfer and
exchange, transfers of the Global Certificates shall be limited to transfers of
such Global Certificates in whole, but not in part, to nominees of the
Depository or to a successor of the Depository or such successor's nominee.
(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 other than for transfers to Institutional Accredited
Investors, as provided herein. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. 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.
(i) Subject to Section 5.02(e), transfers of the Class B-6, Class B-6H,
Class V-1, Class V-2, Class R and Class LR Certificates may be made only in
accordance with this Section 5.02(i). The Certificate Registrar shall register
the transfer of a Class B-6, Class B-6H, Class V-1, Class V-2, Class R or Class
LR Certificate only if (x) the transferor has advised the Certificate Registrar
in writing that such Certificate is being transferred to a Qualified
Institutional Buyer, an Affiliated Person or an Institutional Accredited
Investor and (y) prior to such transfer the transferee furnishes to the
Certificate Registrar an Investment Representation Letter. In addition, the
Certificate Registrar may as a condition of the registration of any such
transfer require the transferor to furnish such other certifications, legal
opinions or other information (at the transferor's expense) as it may reasonably
require to confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) None of the Depositor, the Servicer, the Co-Servicer, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class B-6,
Class B-6H, Class V-1, Class V-2, Class R or Class LR Certificates under the Act
or any other securities law or to take any action not otherwise required under
this Agreement to permit the transfer of such Certificates without registration
or qualification. Any Certificateholder desiring to effect such a transfer
shall, and does hereby agree to, indemnify the Depositor, the Servicer, the
Trustee and the Certificate Registrar, against any loss, liability or expense
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(k) No transfer of any Class A-2, Class A-3, Class A-4, Class A-5, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-6H, Class
V-1, Class V-2, Class R or Class LR Certificate (each, a "Restricted
Certificate") shall be made to (i) an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA, or Section 4975 of the Code, or a
governmental plan 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 (collectively, a "Plan") or (ii) a collective investment fund in which
a Plan is invested, an insurance company that is using the assets of any
insurance company separate account or general account in which the assets of any
such Plan are invested (or which are deemed pursuant to ERISA or any Similar Law
to include assets of Plans) to acquire any such Restricted Certificate or any
other Person acting on behalf of any Plan or using the assets of any Plan to
acquire any such Restricted Certificate, other than (with respect to transfer of
Restricted Certificates other than the Class V-1, Class V-2 and Residual
Certificates) an insurance company using the assets of its general account under
circumstances whereby such transfer to such insurance company would not
constitute a "prohibited transaction" within the meaning of Section 406 or 407
of ERISA, Section 4975 of the Code, or a materially similar characterization
under any Similar Law. Each prospective transferee of a Restricted Certificate
shall either (1) deliver to the Depositor, the Certificate Registrar and the
Trustee, a transfer or representation letter, substantially in the form of
Exhibit D-2 hereto, stating that the prospective transferee is not a Person
referred to in (i) or (ii) above or (2) in the event the transferee is such an
entity specified in (i) or (ii) above, except in the case of a Residual
Certificate, which may not be transferred unless the transferee represents it is
not such an entity, such entity shall provide an Opinion of Counsel in form and
substance satisfactory to the Certificate Registrar that the purchase or holding
of the certificates by or on behalf of a plan will not result in the assets of
the trust being deemed to be "plan assets" and subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
ERISA and the Code or Similar Law, will not constitute or result in a prohibited
transaction within the meaning of Section 406 or 407 of ERISA or Section 4975 of
the Code, and will not subject the Servicer, the Co-Servicer, the Special
Servicer, the Operating Advisor, the Depositor, the Trustee or the Certificate
Registrar to any obligation or liability. None of the Trustee, the Servicer, the
Co-Servicer or the Certificate Registrar shall register a Class R or Class LR
Certificate in any Person's name unless such Person has provided the letter
referred to in clause (1) of the preceding sentence. The transferee of a
beneficial interest in a Global Certificate that is a Restricted Certificate
shall be deemed to represent that it is not a Plan or a Person acting on behalf
of any Plan or using the assets of any Plan to acquire such interest other than
(with respect to transfers of beneficial interests in Global Certificates which
are Restricted Certificates other than the Class V-1, Class V-2 and Residual
Certificates) an insurance company using the assets of its general account under
circumstances whereby such transfer to such insurance company would not
constitute a "prohibited transaction" within the meaning of Section 406 or 407
of ERISA, Section 4975 of the Code, or a materially similar characterization
under any Similar Law. Any transfer of a Restricted Certificate that would
violate or result in a prohibited transaction under ERISA or Section 4975 of the
Code shall be deemed absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall be deemed
by the acceptance or acquisition of such Ownership Interest to have agreed to be
bound by the following provisions and the rights of each Person acquiring any
Ownership Interest are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be a
Permitted Transferee and shall not acquire or hold such Ownership
Interest as agent (including a broker, nominee or other middleman)
on behalf of any Person that is not a Permitted Transferee. Any
such Person shall promptly notify the Certificate Registrar of any
change or impending change in its status (or the status of the
beneficial owner of such Ownership Interest) as a Permitted
Transferee. Any acquisition described in the first sentence of
this Section 5.02(l) by a Person who is not a Permitted Transferee
or by a Person who is acting as an agent of a Person who is not a
Permitted Transferee shall be void and of no effect, and the
immediately preceding owner who was a Permitted Transferee shall
be restored to registered and beneficial ownership of the
Ownership Interest as fully as possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the
express written consent of the Certificate Registrar, and the
Certificate Registrar shall not recognize the Transfer, and such
proposed Transfer shall not be effective, without such consent
with respect thereto. In connection with any proposed Transfer of
any Ownership Interest, the Certificate Registrar shall, as a
condition to such consent, (x) require delivery to it in form and
substance satisfactory to it, and the proposed transferee shall
deliver to the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form attached as
Exhibit C-1 (a "Transferee Affidavit") of the proposed transferee
(A) that such proposed transferee is a Permitted Transferee and
(B) stating that (i) the proposed transferee historically has paid
its debts as they have come due and intends to do so in the
future, (ii) the proposed transferee understands that, as the
holder of an Ownership Interest, it may incur liabilities in
excess of cash flows generated by the residual interest, (iii) the
proposed transferee intends to pay taxes associated with holding
the Ownership Interest as they become due, (iv) the proposed
transferee will not transfer the Ownership Interest to any Person
that does not provide a Transferee Affidavit or as to which the
proposed transferee has actual knowledge that such Person is not a
Permitted Transferee or is acting as an agent (including a broker,
nominee or other middleman) for a Person that is not a Permitted
Transferee, and (v) the proposed transferee expressly agrees to be
bound by and to abide by the provisions of this Section 5.02(l)
and (y) other than in connection with the initial issuance of the
Class R and Class LR Certificates, require a statement from the
proposed transferor substantially in the form attached as Exhibit
C-2 (the "Transferor Letter"), that the proposed transferor has no
actual knowledge that the proposed transferee is not a Permitted
Transferee and has no actual knowledge or reason to know that the
proposed transferee's statements in the preceding clauses
(x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible
Officer of the Certificate Registrar has actual knowledge that the
proposed transferee is not a Permitted Transferee, no Transfer to
such proposed transferee shall be effected and such proposed
Transfer shall not be registered on the Certificate Register;
provided, however, that the Certificate Registrar shall not be
required to conduct any independent investigation to determine
whether a proposed transferee is a Permitted Transferee.
Upon notice to the Certificate Registrar that there has occurred a Transfer
to any Person that is a Disqualified Organization or an agent thereof (including
a broker, nominee, or middleman) in contravention of the foregoing restrictions,
and in any event not later than 60 days after a request for information from the
transferor of such Ownership Interest, or such agent, the Certificate Registrar
and the Trustee agree to furnish to the IRS and the transferor of such Ownership
Interest or such agent such information necessary to the application of Section
860E(e) of the Code as may be required by the Code, including, but not limited
to, the present value of the total anticipated excess inclusions with respect to
such Class R or Class LR Certificate (or portion thereof) for periods after such
Transfer. At the election of the Certificate Registrar and the Trustee, the
Certificate Registrar and the Trustee may charge a reasonable fee for computing
and furnishing such information to the transferor or to such agent referred to
above; provided, however, that such Persons shall in no event be excused from
furnishing such information.
SECTION 5.03. 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 Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee, the Servicer and the Co-Servicer harmless, then, in the
absence of actual knowledge by a Responsible Officer of the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee or the Authenticating Agent shall execute and authenticate and the
Certificate Registrar shall 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 tenor and Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.03, 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 Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership of the corresponding interest in the Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Servicer, to execute
and deliver to the Servicer and the Trustee an instrument in which such Paying
Agent shall agree with the Servicer and the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums have been
paid to the Certificateholders or disposed of as otherwise provided herein. The
initial Paying Agent shall be the Trustee. Except for LaSalle National Bank, as
the initial Paying Agent, the Paying Agent shall at all times be an entity
having a long-term unsecured debt rating of at least "AA" by Fitch and "Aa2" by
Moody's, or shall be otherwise acceptable to each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder, the Servicer or the Co-Servicer (for purposes
of this Section 5.05, an "Applicant") applies in writing to the Certificate
Registrar, and such application states that the Applicant desires to communicate
with other Certificateholders, the Certificate Registrar shall furnish or cause
to be furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant, in the case of any Certificateholder and the expense of the Trust in
the case of the Servicer.
(b) Every Certificateholder, by receiving and holding its Certificate,
agrees with the Trustee that the Trustee and the Certificate Registrar shall not
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Depositor or the
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, the Depositor and the Servicer, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Depositor or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional proof
of any matter referred to in this Section 5.06 as it shall deem necessary.
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE SERVICER, THE CO-SERVICER,
THE OPERATING ADVISOR AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer, the Co-Servicer,
the Operating Advisor and the Special Servicer.
The Depositor, the Servicer, the Co-Servicer, the Operating Advisor and the
Special Servicer each shall be liable in accordance herewith only to the extent
of the obligations specifically imposed by this Agreement.
SECTION 6.02. Merger or Consolidation of the Servicer, the Co-Servicer,
the Operating Advisor or the Special Servicer.
Subject to the following paragraph, each of the Servicer, the Co-Servicer,
the Operating Advisor and the Special Servicer will keep in full effect its
existence, rights and good standing (i) in the case of the Servicer, as a
limited liability company under the laws of the State of Delaware, (ii) in the
case of the Co-Servicer and the Operating Advisor, as a limited partnership
under the laws of the State of Delaware, and (iii) in the case of the Special
Servicer, a corporation under the laws of the State of Texas, and, in each case,
will not jeopardize its ability to do business in each jurisdiction in which the
Mortgaged Properties are located or to protect the validity and enforceability
of this Agreement, the Certificates or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Each of the Servicer, the Co-Servicer, the Operating Advisor and the
Special Servicer 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 it shall be a party,
or any Person succeeding to its business, shall be the successor of the
Servicer, the Co-Servicer, the Operating Advisor or the Special Servicer,
respectively, hereunder, and shall be deemed to have assumed all of the
liabilities of the Servicer, the Co-Servicer, the Operating Advisor or the
Special Servicer, respectively, hereunder, if each of the Rating Agencies has
confirmed in writing that such merger or consolidation or transfer of assets and
succession, in and of itself, will not cause a downgrade, qualification or
withdrawal of the then-current ratings assigned by such Rating Agency to any
Class of Certificates.
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer, the
Co-Servicer, the Operating Advisor, the Special Servicer and
Others.
(a) None of the Depositor, the Servicer, the Co-Servicer, the Operating
Advisor, the Special Servicer or any of the directors, officers, employees or
agents of the Depositor, the Servicer, the Co-Servicer, the Operating Advisor or
the Special Servicer 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
Servicer, the Co-Servicer, the Operating Advisor or the Special Servicer or any
such Person against any breach of warranties or representations made herein, or
against any liability which would otherwise be imposed by reason of willful
misconduct, bad faith, fraud or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties hereunder. The Depositor,
the Servicer, the Co-Servicer, the Operating Advisor, the Special Servicer and
any director, officer, employee or agent of the Depositor, the Servicer, the
Co-Servicer, the Operating Advisor 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 appropriate Person respecting any matters arising hereunder.
The Depositor, the Servicer, the Co-Servicer, the Operating Advisor, the Special
Servicer and any director, officer, employee or agent of the Depositor, the
Servicer, the Co-Servicer, the Operating Advisor or the Special Servicer shall
be indemnified and held harmless by the Trust Fund against any loss, liability
or expense (including legal fees and expenses) (i) incurred in connection with
any legal action relating to this Agreement or the Certificates, other than any
loss, liability or expense incurred by reason of willful misconduct, bad faith,
fraud or negligence (or in the case of the Servicer, the Co-Servicer, the
Operating Advisor or the Special Servicer, by reason of any specific liability
imposed for a breach of the Servicing Standard) in the performance of duties
hereunder or by reason of reckless disregard of obligations or duties hereunder,
in each case by the Person being indemnified or (ii) imposed by any taxing
authority if such loss, liability or expense is not specifically reimbursable
pursuant to the terms of this Agreement. None of the Depositor, the Servicer,
the Co-Servicer, the Operating Advisor or the Special Servicer shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and in its
opinion does not expose it to any expense or liability; provided, however, that
the Depositor, the Servicer, the Co-Servicer, the Operating Advisor or the
Special Servicer may in its discretion undertake any action related to its
obligations hereunder which it may deem necessary or desirable with 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 and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor, the Servicer, the
Co-Servicer, the Operating Advisor and the Special Servicer shall be entitled to
be reimbursed therefor from the Collection Account as provided in Section 3.06
of this Agreement.
SECTION 6.04. Limitation on Resignation of the Servicer, the Co-Servicer,
the Operating Advisor and the Special Servicer;
Termination of the Servicer, the Co-Servicer, the
Operating Advisor and the Special Servicer.
(a) The Servicer, the Co-Servicer, the Operating Advisor and the Special
Servicer may assign their respective rights and delegate their respective duties
and obligations under this Agreement in connection with the sale or transfer of
a substantial portion of their mortgage servicing or asset management portfolio,
provided that: (i) the purchaser or transferee accepting such assignment and
delegation (A) shall be satisfactory to the Trustee and to the Depositor, (B)
shall be an established mortgage finance institution, bank or mortgage servicing
institution, organized and doing business under the laws of any state of the
United States or the District of Columbia, authorized under such laws to perform
the duties of a servicer of mortgage loans or a Person resulting from a merger,
consolidation or succession that is permitted under Section 6.02, (C) shall be
acceptable to each Rating Agency as confirmed by a letter from each Rating
Agency delivered to the Trustee that such assignment or delegation will not
cause a downgrade, withdrawal or qualification of the then-current ratings of
the Certificates, and (D) shall execute and deliver to the Trustee an agreement,
in form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Servicer, the
Co-Servicer or the Operating Advisor under this Agreement from and after the
date of such agreement; (ii) as confirmed by a letter from each Rating Agency
delivered to the Trustee, each Rating Agency's rating or ratings of the Regular
Certificates in effect immediately prior to such assignment, sale or transfer
will not be qualified, downgraded or withdrawn as a result of such assignment,
sale or transfer; (iii) the Servicer, the Co-Servicer, the Operating Advisor or
the Special Servicer shall not be released from its obligations under this
Agreement that arose prior to the effective date of such assignment and
delegation under this Section 6.04; and (iv) the rate at which the Servicer
Compensation, Special Servicer Compensation or the compensation of the Operating
Advisor, as applicable (or any component thereof), is calculated shall not
exceed the rate then in effect. Upon acceptance of such assignment and
delegation, the purchaser or transferee shall be the successor Servicer,
Co-Servicer, the Operating Advisor or Special Servicer, as applicable,
hereunder.
(b) Except as provided in this Section 6.04, the Servicer, the Co-Servicer,
the Operating Advisor and the Special Servicer shall not resign from their
respective obligations and duties hereby imposed on them except upon
determination that such duties hereunder are no longer permissible under
applicable law. Any such determination permitting the resignation of the
Servicer, the Co-Servicer, the Operating Advisor or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel (obtained at the
resigning Servicer's, Co-Servicer's, Operating Advisor's or Special Servicer's
expense) to such effect delivered to the Trustee.
No resignation or removal of the Servicer, the Co-Servicer, the Operating
Advisor or the Special Servicer as contemplated by the preceding paragraphs
shall become effective until the Trustee or a successor Servicer, Co-Servicer,
Operating Advisor or Special Servicer shall have assumed the Servicer's, the
Co-Servicer's, the Operating Advisor's or the Special Servicer's
responsibilities, duties, liabilities and obligations hereunder. If no successor
Servicer, Co-Servicer, Operating Advisor or Special Servicer can be obtained to
perform such obligations for the same compensation to which the terminated
Servicer, Co-Servicer, Operating Advisor or Special Servicer would have been
entitled, additional amounts payable to such successor Servicer, Co-Servicer,
Operating Advisor or Special Servicer shall be treated as Realized Losses.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Servicer, the Co-Servicer, the Operating Advisor and the
Special Servicer.
The Servicer, the Co-Servicer, the Operating Advisor and the Special
Servicer shall afford the Depositor, the Trustee and the Rating Agencies, upon
reasonable notice, during normal business hours access to all records maintained
by it in respect of its rights and obligations hereunder and access to its
officers responsible for such obligations. Upon request, the Servicer, the
Co-Servicer, the Operating Advisor and the Special Servicer shall furnish to the
Depositor and the Trustee its most recent financial statements, which with
respect to the Servicer may be delivered on a consolidated basis (or in the case
of the initial Special Servicer, Co-Servicer and Operating Advisor, the
financial statements of AMRESCO, INC. if no separate financial statements have
been prepared for the initial Special Servicer, the Co-Servicer or the Operating
Advisor) and such other information in its possession regarding its business,
affairs, property and condition, financial or otherwise as the party requesting
such information, in its reasonable judgment, determines to be relevant to the
performance of the obligations hereunder of the Servicer, the Co-Servicer, the
Operating Advisor and the Special Servicer. The Depositor may, but is not
obligated to, enforce the obligations of the Servicer, the Co-Servicer, the
Operating Advisor or the Special Servicer hereunder which are in default and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of such Person hereunder or exercise its rights hereunder,
provided that the Servicer, the Co-Servicer, the Operating Advisor and the
Special Servicer shall not be relieved of any of its obligations hereunder by
virtue of such performance by the Depositor or its designee. In the event the
Depositor or its designee undertakes any such action it will be reimbursed by
the Trust Fund from the Collection Account as provided in Section 3.06 and
Section 6.03(a) hereof to the extent not recoverable from the Servicer, the
Co-Servicer, the Operating Advisor or the Special Servicer, as applicable. No
party to this Agreement shall have any responsibility or liability for any
action or failure to act by any other party to this Agreement or shall be
obligated to monitor or supervise the performance of any other party to this
Agreement. None of the Servicer, the Co-Servicer, the Operating Advisor or the
Special Servicer shall be under any obligation to disclose confidential or
proprietary information pursuant to this Section.
SECTION 6.06. Servicer, Co-Servicer or Special Servicer as Owner of a
Certificate.
The Servicer or an Affiliate of the Servicer, or the Special Servicer or an
Affiliate of the Special Servicer, or the Co-Servicer or an Affiliate of the
Co-Servicer, or the Operating Advisor or an Affiliate of the Operating Advisor
may become the Holder (or with respect to a Global Certificate, Beneficial
Owner) of any Certificate with the same rights it would have if it were not the
Servicer, the Co-Servicer, the Operating Advisor or the Special Servicer or an
Affiliate thereof. If, at any time during which the Servicer, the Co-Servicer or
the Special Servicer or an Affiliate of the Servicer, the Co-Servicer, the
Operating Advisor or the Special Servicer is the Holder or Beneficial Owner of
any Certificate, the Servicer, the Co-Servicer, the Operating Advisor or the
Special Servicer proposes to take action (including for this purpose, omitting
to take action) that (i) is not expressly prohibited by the terms hereof and
would not, in the Servicer's, the Co-Servicer's, the Operating Advisor's or the
Special Servicer's good faith judgment, violate the Servicing Standard, and (ii)
if taken, might nonetheless, in the Servicer's, the Co-Servicer's, the Operating
Advisor's or the Special Servicer's good faith judgment, be considered by other
Persons to violate the Servicing Standard, the Servicer, the Co-Servicer, the
Operating Advisor or the Special Servicer may seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (i) states that it is delivered pursuant to this Section 6.06, (ii)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Servicer, the Co-Servicer, the Operating Advisor or the Special
Servicer or an Affiliate of the Servicer, the Co-Servicer, the Operating Advisor
or the Special Servicer, and (iii) describes in reasonable detail the action
that the Servicer, the Co-Servicer, the Operating Advisor or the Special
Servicer proposes to take. The Trustee, upon receipt of such notice, shall
forward it to the Certificateholders (other than the Servicer and its
Affiliates, the Co-Servicer and its Affiliates, the Operating Advisor and its
Affiliates or the Special Servicer and its Affiliates, as applicable) together
with such instructions for response as the Trustee shall reasonably determine.
If at any time Certificateholders holding greater than 50% of the Voting Rights
of all Certificateholders (calculated without regard to the Certificates
beneficially owned by the Servicer or its Affiliates, the Co-Servicer or its
Affiliates, the Operating Advisor or its Affiliates or the Special Servicer or
its Affiliates, as applicable) shall have consented in writing to the proposal
described in the written notice, and if the Servicer, the Co-Servicer, the
Operating Advisor or the Special Servicer shall act as proposed in the written
notice, such action shall be deemed to comply with the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Servicer, the Co-Servicer,
the Operating Advisor or the Special Servicer, as applicable, of the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that the Servicer, the Co-Servicer, the
Operating Advisor or the Special Servicer be permitted to invoke the procedure
set forth herein with respect to routine servicing matters arising hereunder,
except in the case of unusual circumstances.
SECTION 6.07. Special Termination of Servicer.
In the event that either Rating Agency does not assign an "approved" or
"acceptable" status to act as Servicer hereunder to The Capital Company of
America Client Services LLC ("CCA Servicer") by April 1, 1999, or, if at any
time prior thereto either of the Rating Agencies indicates that the failure to
remove CCA Servicer as the servicer of the Mortgage Loans will result in a
qualification, withdrawal or downgrade of any Class of Certificates then
outstanding, the CCA Servicer shall immediately relinquish its rights as
Servicer hereunder and AMRESCO Services, L.P., shall succeed CCA Servicer as
Servicer pursuant to the terms of this Agreement and an Assumption of Servicing
Rights Agreement. The terms of Section 7.01(c) and 7.02 hereof shall apply to
such termination as if CCA Servicer were the "Terminated Party" and AMRESCO
Services, L.P. were the "Terminating Party."
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Servicer Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Servicer or the Co-Servicer, as applicable, to
remit to the Collection Account or any failure by the Servicer or the
Co-Servicer, as applicable, to remit to the Trustee for deposit into
the Distribution Account, Upper-Tier Distribution Account, Excess
Interest Distribution Account, Pre-Lock Out Return of Premium Account,
Post-Lock Out Return of Premium Account, Interest Reserve Account or
Default Interest Distribution Account, any amount required to be so
deposited by the Servicer or the Co-Servicer, as applicable (including
a P&I Advance), pursuant to, and at the time specified by the terms of
this Agreement; or
(ii) any failure on the part of the Servicer or the Co-Servicer, as
applicable, duly to observe or perform in any material respect any
other of the covenants or agreements or the breach of any
representations or warranties on the part of the Servicer or the
Co-Servicer, as applicable, contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer or the Co-Servicer, as
applicable, by the Depositor or the Trustee, or to the Servicer, the
Co-Servicer, the Depositor and the Trustee by the Holders of
Certificates evidencing Percentage Interests of at least 25% of any
Class affected thereby; or
(iii)confirmation in writing by any Rating Agency that failure to remove
the Servicer or the Co-Servicer, as applicable, will, in and of
itself, cause a downgrade, qualification or withdrawal of the
then-current ratings assigned to any Class of Certificates; 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 for
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer or the
Co-Servicer, as applicable, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(v) the Servicer or the Co-Servicer, as applicable, shall 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 the Servicer or Co-Servicer,
respectively, or of or relating to all or substantially all of its
property; or
(vi) the Servicer or the Co-Servicer, as applicable, 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 or the Co-Servicer, as applicable, shall fail to make
any Property Advance required to be made by the Servicer or the
Co-Servicer hereunder (whether or not the Trustee or the Fiscal Agent
makes such Advance), which failure continues unremedied for a period
of thirty (30) days after the date on which such Property Advance was
first due (or for any shorter period as may be required, if
applicable, to avoid any lapse in insurance coverage required under
any Mortgage or this Agreement with respect to any Mortgaged Property
or to avoid any foreclosure or similar action with respect to any
Mortgaged Property by reason of a failure to pay real estate taxes and
assessments and if the Trustee makes a required Property Advance
pursuant to Section 3.08(a) due to the Servicer's failure to make a
required Advance, such Event of Default shall occur immediately upon
such Advance); or
(viii) the Servicer or the Co-Servicer, as applicable, shall no longer be
an "approved" servicer by each of the Rating Agencies for mortgage
pools similar to the Trust Funds;
then, and in each and every such case, so long as a Servicer Event of Default
shall not have been remedied, the Trustee may, and at the written direction of
the Holders of at least 25% of the aggregate Voting Rights of all Certificates
shall, terminate the Servicer or the Co-Servicer, as applicable.
In the event that the Servicer is also the Special Servicer and the
Servicer is terminated as provided in this Section 7.01, the Servicer shall also
be terminated as Special Servicer.
(b) "Special Servicer Event of Default," wherever used herein, means any
one of the following events:
(i) any failure by the Special Servicer to remit to the Collection Account
any amount required to be so deposited by the Special Servicer
pursuant to and in accordance with the terms of this Agreement; or
(ii) any failure on the part of the Special Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements or the breach of any representations or warranties on the
part of the Special Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Special Servicer by the Servicer, the
Co-Servicer, the Depositor or the Trustee, or to the Special Servicer,
the Servicer, the Co-Servicer, the Depositor and the Trustee by the
Holders of Certificates evidencing Percentage Interests of at least
25% of any Class affected thereby; or
(iii)confirmation in writing by any Rating Agency that failure to remove
the Special Servicer would, in and of itself, cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to
any Class of Certificates; 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 for
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(v) the Special Servicer shall 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 the Special Servicer, or of or relating to all or
substantially all of its property; or
(vi) 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 insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii)the Special Servicer shall no longer be an "approved" special
servicer by each of the Rating Agencies for mortgage pools similar to
the Trust Fund;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer.
(c) In the event that the Servicer, the Co-Servicer or the Special Servicer
is terminated pursuant to this Section 7.01, the Trustee (the "Terminating
Party") shall, by notice in writing to the Servicer, the Co-Servicer or the
Special Servicer, as the case may be (the "Terminated Party"), terminate all of
its rights and obligations under this Agreement and in and to the Mortgage Loans
and the proceeds thereof, other than any rights the Terminated Party may have
hereunder as a Certificateholder and any rights or obligations that accrued
prior to the date of such termination (including the right to receive all
amounts accrued or owing to it under this Agreement, plus interest at the
Advance Rate on such amounts until received to the extent such amounts bear
interest as provided in this Agreement, with respect to periods prior to the
date of such termination and the right to the benefits of Section 6.03
notwithstanding any such termination). On or after the receipt by the Terminated
Party, of such written notice, all of its authority and power under this
Agreement, whether with respect to the Certificates (except that the Terminated
Party shall retain its rights as a Certificateholder in the event and to the
extent that it is a Certificateholder) or the Mortgage Loans or otherwise, shall
pass to and be vested in the Terminating Party pursuant to and under this
Section and, without limitation, the Terminating Party is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Terminated Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Servicer, the Co-Servicer and the Special
Servicer each agree in the event it is terminated pursuant to this Section 7.01
to promptly (and in any event no later than 10 Business Days subsequent to such
notice) provide, at its own expense, the Terminating Party with all documents
and records requested by the Terminating Party to enable the Terminating Party
to assume its functions hereunder, and to cooperate with the Terminating Party
and the successor to its responsibilities hereunder in effecting the termination
of its responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Servicer, Co-Servicer or Special Servicer or the
Terminating Party, as applicable, for administration by it of all cash amounts
which shall at the time be or should have been credited by the Servicer, the
Co-Servicer or the Special Servicer to the Collection Account, and any REO
Account, Lock-Box Account or Cash Collateral Account thereafter be received with
respect to the Mortgage Loans, and shall promptly provide the Terminating Party
or such successor Servicer, Co-Servicer or successor Special Servicer (which may
include the Trustee), as applicable, all documents and records reasonably
requested by it, such documents and records to be provided in such form as the
Terminating Party or such successor Servicer, Co-Servicer or Special Servicer
shall reasonably request (including electromagnetic form), to enable it to
assume the Servicer's, Co-Servicer's or Special Servicer's function hereunder.
All reasonable costs and expenses of the Terminating Party, the successor
Servicer, the successor Co-Servicer or successor Special Servicer incurred in
connection with transferring the Mortgage Files to the successor Servicer,
Co-Servicer or Special Servicer and amending this Agreement to reflect such
succession as successor Servicer, successor Co-Servicer or successor Special
Servicer pursuant to this Section 7.01 shall be paid by the predecessor
Servicer, Co-Servicer or Special Servicer, as applicable, upon presentation of
reasonable documentation of such costs and expenses. If the predecessor
Servicer, Co-Servicer or Special Servicer (as the case may be) has not
reimbursed the Terminating Party or the successor Servicer, Co-Servicer or
Special Servicer for such expenses within 90 days after the presentation of
reasonable documentation, such expense shall be reimbursed by the Trust Fund;
provided that the Terminated Party shall not thereby be relieved of its
liability for such expenses. If and to the extent that the Terminated Party has
not reimbursed such costs and expenses, the Terminating Party shall have an
affirmative obligation to take all reasonable actions to collect such expenses
on behalf of the Trust Fund.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer, the Co-Servicer or the Special Servicer
receives a notice of termination pursuant to Section 7.01, the Terminating Party
shall be its successor in all respects in its capacity as Servicer, Co-Servicer
or Special Servicer under this Agreement and the transactions set forth or
provided for herein and, except as provided herein, shall be subject to all the
responsibilities, duties, limitations on liability and liabilities relating
thereto and arising thereafter placed on the Servicer, Co-Servicer or Special
Servicer by the terms and provisions hereof; provided, however, that (i) the
Terminating Party shall have no responsibilities, duties, liabilities or
obligations with respect to any act or omission of the Servicer, Co-Servicer or
Special Servicer and (ii) any failure to perform, or delay in performing, such
duties or responsibilities caused by the Terminated Party's failure to provide,
or delay in providing, records, tapes, disks, information or monies shall not be
considered a default by such successor hereunder. The Trustee, as successor
Servicer, successor Co-Servicer or successor Special Servicer, shall be
indemnified to the full extent provided the Servicer, Co-Servicer or Special
Servicer, as applicable, under this Agreement prior to the Servicer's or the
Special Servicer's termination. The appointment of a successor Servicer,
successor Co-Servicer or successor Special Servicer shall not affect any
liability of the predecessor Servicer, Co-Servicer or Special Servicer which may
have arisen prior to its termination as Servicer, Co-Servicer or Special
Servicer. The Terminating Party shall not be liable for any of the
representations and warranties of the Servicer, Co-Servicer or Special Servicer
herein or in any related document or agreement, for any acts or omissions of the
predecessor Servicer, predecessor Co-Servicer or predecessor Special Servicer or
for any losses incurred in respect of any Permitted Investment by the Servicer
pursuant to Section 3.07 hereunder nor shall the Trustee be required to purchase
any Mortgage Loan hereunder. As compensation therefor, the Terminating Party as
successor Servicer, successor Co-Servicer or successor Special Servicer shall be
entitled to the applicable portion of the Servicing Compensation or to the
Special Servicing Compensation, as applicable, and all funds relating to the
Mortgage Loans that accrue after the date of the Terminating Party's succession
to which the Servicer, Co-Servicer or Special Servicer would have been entitled
if the Servicer, Co-Servicer or Special Servicer, as applicable, had continued
to act hereunder. In the event any Advances made by the Servicer or the
Co-Servicer and the Trustee or the Fiscal Agent shall at any time be
outstanding, or any amounts of interest thereon shall be accrued and unpaid, all
amounts available to repay Advances and interest hereunder shall be applied
entirely to the Advances made by the Trustee or the Fiscal Agent (and the
accrued and unpaid interest thereon), until such Advances and interest shall
have been repaid in full. Notwithstanding the above, the Trustee may, if it
shall be unwilling to so act, or shall, if it is unable to so act, or if the
Holders of Certificates entitled to at least 25% of the aggregate Voting Rights
so request in writing to the Trustee, or if the long-term unsecured debt rating
of the Trustee or Fiscal Agent is not at least "AA" by Fitch and "Aa2" by
Moody's or if the Rating Agencies do not provide written confirmation that the
succession of the Trustee as Servicer, Co-Servicer or Special Servicer, as
applicable, will not cause a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates, promptly appoint, or petition
a court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings assigned to
any Class of Certificates as evidenced in writing by each Rating Agency, as the
successor to the Servicer, Co-Servicer or Special Servicer, as applicable,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer, Co-Servicer or Special Servicer hereunder. No
appointment of a successor to the Servicer, Co-Servicer or Special Servicer
hereunder shall be effective until the assumption by such successor of all the
Servicer's, Co-Servicer's or Special Servicer's responsibilities, duties and
liabilities hereunder. Pending appointment of a successor to the Servicer or the
Co-Servicer (or the Special Servicer if the Special Servicer is also the
Servicer) hereunder, unless the Trustee shall be prohibited by law from so
acting, the Trustee shall act in such capacity as herein above provided. Pending
the appointment of a successor to the Special Servicer, unless the Servicer is
also the Special Servicer, the Servicer shall act in such capacity. In
connection with such appointment and assumption described herein, the Trustee
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Terminated Party hereunder, provided, further, that if no successor to the
Terminated Party can be obtained to perform the obligations of such Terminated
Party hereunder for such compensation, then, subject to approval by the
Directing Holders, additional amounts shall be paid to such successor and such
amounts in excess of that permitted the Terminated Party shall be treated as
Realized Losses. Upon determining that a successor to the Terminated Party
cannot be obtained for the compensation that the Terminated Party was receiving,
the Trustee shall give notice of that fact to the Directing Holders. Once the
Trustee has determined the amount of compensation acceptable to a proposed
successor to the Terminated Party, the Trustee shall give notice to the
Directing Holders of the identity of such successor and the proposed
compensation. The Directing Holders will then have 10 Business Days during which
to propose their own successor and compensation (which must be acceptable to the
Rating Agencies, as evidenced in writing that the appointment of such successor,
in and of itself would not result in a downgrade, qualification or withdrawal by
any Rating Agency of the then-current ratings assigned to the Certificates) or
to approve the successor and compensation proposed by the Trustee. The
Depositor, the Trustee, the Servicer, Co-Servicer or Special Servicer and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a
successor to the Servicer, the Co-Servicer or the Special Servicer, the Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and to each Rating
Agency.
(b) Within 30 days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Certificateholders and to each Rating Agency notice of
such Event of Default, unless such Event of Default shall have been cured or
waived.
SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Servicer Event of Default or a Special
Servicer Event of Default, so long as such Servicer Event of Default or Special
Servicer Event of Default, if applicable, shall not have been remedied, the
Trustee, in addition to the rights specified in Section 7.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). In such event, the legal fees, expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06.
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Servicer Event of Default or Special
Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default; Termination.
The Holders of Certificates evidencing not less than 66-2/3% of the
aggregate Voting Rights of the Certificates may, on behalf of all
Certificateholders, waive any default by the Servicer, Co-Servicer or Special
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits (including P&I Advances) to or,
in the case of the Servicer, payments from the Collection Account or the
Distribution Account or in remitting payments as received, in each case in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing or
waiver 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
and no permissive right of the Trustee shall be construed as a duty. During the
continuance of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee, subject to the provisions of Sections 7.02
and 7.05 shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that, the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument provided to it hereunder. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall take action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors, employees,
agents or "control" persons within the meaning of the Act shall have any
liability arising out of or in connection with this Agreement, provided, that,
subject to Section 8.02, no provision of this Agreement shall be construed to
relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a Responsible
Officer of the Trustee has actual knowledge, and after the curing or
waiver 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 resolutions,
certificates, statements, reports, opinions, documents, orders or
other instruments furnished to the Trustee that conform on their face
to the requirements of this Agreement without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii)The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to
greater than 50% of the Percentage Interests (or such other percentage
as is specified herein) of each affected Class (or the Directing
Holders if so specified herein), or of the aggregate Voting Rights of
the Certificates, 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;
(iv) Neither the Trustee nor any of its respective directors, officers,
employees, agents or control persons shall be responsible for any act
or omission of any Custodian, Paying Agent or Certificate Registrar
that is not an Affiliate of the Trustee and that is selected other
than by the Trustee, performed or omitted in compliance with any
custodial or other agreement, or any act or omission of the Servicer,
Co-Servicer, Special Servicer, the Depositor or any other Person,
including, without limitation, in connection with actions taken
pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its respective
duties as Trustee in accordance with this Agreement (and, if it does,
all legal expenses and costs of such action shall be expenses and
costs of the Trust Fund), and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account, unless such legal
action arises out of the negligence or bad faith of the Trustee or any
breach of an obligation, representation, warranty or covenant of the
Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act, failure to
act or breach of any Person upon the occurrence of which the Trustee
may be required to act, unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure. The Trustee shall be deemed
to have actual knowledge of the Servicer's, the Co-Servicer's or the
Special Servicer's failure to provide scheduled reports, certificates
and statements when and as required to be delivered to the Trustee
pursuant to this Agreement.
None of the provisions contained in this Agreement shall require either the
Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend or risk its
own funds, or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if in
the opinion of the Trustee or the Fiscal Agent, respectively, the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer, the
Co-Servicer or the Special Servicer under this Agreement, except during such
time, if any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Servicer or the Special Servicer
in accordance with the terms of this Agreement. Neither the Trustee nor the
Fiscal Agent shall be required to post any surety or bond of any kind in
connection with its performance of its obligations under this Agreement and
neither the Trustee nor the Fiscal Agent shall be liable for any loss on any
investment of funds pursuant to this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
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 and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and
in accordance with such Opinion of Counsel;
(iii)(A) The Trustee shall be under no obligation 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 such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby; (B) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act; and (C)
provided, however, that subject to the foregoing clause (A), nothing
contained herein shall relieve the Trustee of the obligations, upon
the occurrence of an Event of Default (which has not been cured or
waived) of which a Responsible Officer of the Trustee has actual
knowledge, 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 person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers, employees,
Affiliates, agents or "control" persons within the meaning of the Act
shall be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by the Trustee to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) 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 any of the Holders of Certificates entitled to at least
25% (of such other percentage as is specified herein) of the
Percentage Interests of any affected Class; 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 investigation shall be paid by
the Servicer, the Co-Servicer or the Special Servicer if an Event of
Default shall have occurred and be continuing relating to the
Servicer, the Co-Servicer or the Special Servicer, respectively, and
otherwise by the Certificateholders requesting the investigation; and
(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 but shall not be relieved of the obligations hereunder.
(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund unless the Trustee shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
either the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Mortgage Loan
by the Depositor pursuant to this Agreement or the eligibility of any Mortgage
Loan for purposes of this Agreement.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, the Fiscal Agent, the Servicer, the Co-Servicer,
the Operating Advisor or the Special Servicer and the Trustee, the Fiscal Agent,
the Servicer, the Co-Servicer, the Operating Advisor and the Special Servicer
assume no responsibility for their correctness. The Trustee, the Fiscal Agent,
the Servicer, the Co-Servicer, the Operating Advisor and the Special Servicer
make no representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan, or
related document. Neither the Trustee nor the Fiscal Agent shall at any time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage, any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement. Without limiting the foregoing, neither
the Trustee nor the Fiscal Agent shall be liable or responsible for: the
existence, condition and ownership of any Mortgaged Property; the existence of
any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Servicer, the Co-Servicer or the Special Servicer pursuant to
Section 7.02) or the enforceability thereof; the existence of any Mortgage Loan
or the contents of the related Mortgage File on any computer or other record
thereof (other than if the Trustee shall assume the duties of the Servicer, the
Co-Servicer or the Special Servicer pursuant to Section 7.02); the validity of
the assignment of any Mortgage Loan to the Trust Fund or of any intervening
assignment; the completeness of any Mortgage File; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer, the Co-Servicer or the Special Servicer pursuant to
Section 7.02); the compliance by the Depositor, the Servicer, the Co-Servicer or
the Special Servicer with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation prior to the Trustee's receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Servicer or any loss resulting therefrom, it being
understood that the Trustee shall remain responsible for any Trust Fund property
that it may hold in its individual capacity; the acts or omissions of any of the
Depositor, the Servicer, the Co-Servicer or the Special Servicer (other than if
the Trustee shall assume the duties of the Servicer, Co-Servicer or Special
Servicer pursuant to Section 7.02) or any sub-servicer or any Borrower; any
action of the Servicer, Co-Servicer or Special Servicer (other than if the
Trustee shall assume the duties of the Servicer, Co-Servicer or Special Servicer
pursuant to Section 7.02) or any sub-servicer taken in the name of the Trustee,
except to the extent such action is taken at the express written direction of
the Trustee; the failure of the Servicer, the Co-Servicer or the Special
Servicer or any sub-servicer to act or perform any duties required of it on
behalf of the Trust Fund or the Trustee hereunder; or any action by or omission
of the Trustee taken at the instruction of the Servicer, the Co-Servicer or the
Special Servicer (other than if the Trustee shall assume the duties of the
Servicer or the Special Servicer pursuant to Section 7.02) unless the taking of
such action is not permitted by the express terms of this Agreement; provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties as specifically set forth in this Agreement. Neither the
Trustee nor the Fiscal Agent shall be accountable for the use or application by
the Depositor, the Servicer, the Co-Servicer or the Special Servicer of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Servicer, the Co-Servicer or
the Special Servicer in respect of the assignment of the Mortgage Loans or
deposited in or withdrawn from the Collection Account, Distribution Account,
Upper-Tier Distribution Account, Lock-Box Account, Cash Collateral Account,
Reserve Accounts, Interest Reserve Account, Default Interest Distribution
Account, Excess Interest Distribution Account, Repurchase Price Return of
Premium Distribution Account and Post-Lock Out Return of Premium Distribution
Account or any other account maintained by or on behalf of the Servicer, the
Co-Servicer or the Special Servicer, other than any funds held by the Trustee or
the Fiscal Agent, as applicable. Neither the Trustee nor the Fiscal Agent shall
have any responsibility for filing any financing or continuation statement in
any public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder (unless the Trustee
shall have become the successor Servicer) or to record this Agreement. In making
any calculation hereunder which includes as a component thereof the payment or
distribution of interest for a stated period at a stated rate "to the extent
permitted by applicable law," the Trustee shall assume that such payment is so
permitted unless a Responsible Officer of the Trustee has actual knowledge, or
receives an Opinion of Counsel (at the expense of the Person asserting the
impermissibility) to the effect, that such payment is not permitted by
applicable law.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee and Fiscal Agent
in its individual capacity or any other capacity may become the owner or pledgee
of Certificates, and may deal with the Depositor, the Servicer and the
Co-Servicer in banking transactions, with the same rights it would have if it
were not Trustee, Fiscal Agent or such agent.
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Servicer, the Co-Servicer or the Special Servicer
hereunder pursuant to or otherwise arising from the resignation or removal of
the Servicer, the Co-Servicer or the Special Servicer, the Trustee shall be
entitled to the compensation to which the Servicer, the Co-Servicer or the
Special Servicer, as the case may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or reimbursed by
the Trust Fund upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or the Fiscal Agent pursuant to and in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(iii) except any such expense, disbursement or
advance as may arise from its negligence or bad faith; provided, however, that,
subject to the last paragraph of Section 8.01, neither the Trustee nor the
Fiscal Agent shall refuse to perform any of its duties hereunder solely as a
result of the failure to be paid the Trustee Fee and the Trustee's expenses or
any sums due to the Fiscal Agent.
The Servicer, the Co-Servicer and the Special Servicer covenant and agree
to pay or reimburse the Trustee for the reasonable expenses, disbursements and
advances incurred or made by the Trustee in connection with any transfer of the
servicing responsibilities of the Servicer, the Co-Servicer or the Special
Servicer, respectively, hereunder, pursuant to or otherwise arising from the
resignation or removal of the Servicer or Co-Servicer, in accordance with any of
the provisions of this Agreement (and including the reasonable fees and expenses
and disbursements of its counsel and all other persons not regularly in its
employ), except any such expense, disbursement or advance as may arise from the
negligence or bad faith of the Trustee or expenses incurred by the Trustee in
its capacity as successor Servicer; provided, that in the event that the
Servicer or Co-Servicer is terminated pursuant to Section 6.04(c), expenses
incurred in connection with such transfer shall be paid by the Depositor.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Depositor, the Servicer, the Co-Servicer, the Operating Advisor, the Special
Servicer and the Trustee (each, a "Cross-Indemnifying Party") shall indemnify
the Servicer, the Co-Servicer, the Operating Advisor, the Special Servicer, the
Trustee and the Fiscal Agent and their respective Affiliates and each of the
directors, officers, employees and agents of the Trustee, the Fiscal Agent and
their respective Affiliates (each, a "Cross-Indemnified Party"), and hold each
of them harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Cross-Indemnified Party may
sustain in connection with this Agreement (including, without limitation,
reasonable fees and disbursements of counsel incurred by the Cross-Indemnified
Party in any action or proceeding between the Cross-Indemnifying Party and the
Cross-Indemnified Party or between the Cross-Indemnified Party and any third
party or otherwise) related to each such Cross-Indemnifying Party's respective
willful misconduct, bad faith, fraud and/or negligence in the performance of
each of its respective duties hereunder or by reason of reckless disregard of
its respective obligations and duties hereunder (including in the case of the
Servicer or the Co-Servicer, any agent of the Servicer, the Co-Servicer or
sub-servicer).
(d) The Trust Fund shall indemnify the Trustee and the Fiscal Agent and
their respective Affiliates and each of the directors, officers, employees and
agents of the Trustee, the Fiscal Agent and their respective Affiliates (each, a
"Trust-Indemnified Party") from, and hold it harmless against, any and all
losses, liabilities, damages, claims or unanticipated expenses (including,
without limitation, reasonable fees and disbursements of counsel incurred by the
Trust-Indemnified Party in any action or proceeding between any of the Paying
Agent, the Certificate Registrar, the Custodian, the Depositor, the Servicer,
the Co-Servicer and the Special Servicer and the Trust-Indemnified Party or
between the Trust-Indemnified Party and any third party or otherwise) arising in
respect of this Agreement or the Certificates, in each case to the extent and
only to the extent, such payments are expressly reimbursable under this
Agreement or are "unanticipated expenses incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii), other than (i)
those resulting from the negligence, fraud, bad faith or willful misconduct of
the Trust-Indemnified Party and (ii) those as to which such Trust-Indemnified
Party is entitled to indemnification pursuant to Section 8.05(c). The term
"unanticipated expenses incurred by a REMIC" shall include any fees, expenses
and disbursement of any separate trustee or co-trustee appointed hereunder, only
to the extent such fees, expenses and disbursements were not reasonably
anticipated as of the Closing Date and the losses, liabilities, damages, claims
or expenses (including reasonable attorneys' fees) incurred or advanced by a
Trust-Indemnified Party in connection with any litigation arising out of this
Agreement, including, without limitation, under Section 2.03, Section 3.10, the
third paragraph of Section 3.11, Section 4.05 and Section 7.01. The right of
reimbursement of the Trust-Indemnified Parties under this Section 8.05(d) shall
be senior to the rights of all Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.05
shall survive the termination or maturity of this Agreement or the resignation
or removal of the Trustee or the Fiscal Agent, as the case may be, as regards
rights accrued prior to such resignation or removal and (with respect to any
acts or omissions during their respective tenures) the resignation, removal or
termination of the Servicer, the Co-Servicer, the Operating Advisor, the Special
Servicer, the Paying Agent, the Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but not be
limited to, such indemnities, compensation, expenses, disbursements, advances,
losses, liabilities, damages and the like, as may pertain or relate to any
environmental law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or 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 a rating on its unsecured long-term debt of
at least "BBB" by Fitch and "Baa2" by Moody's (or at any time when there is no
Fiscal Agent appointed and acting hereunder or any such Fiscal Agent so
appointed has a rating on its long-term unsecured debt that is lower than "AA"
by Fitch and "Aa2" by Moody's (without regard to any plus or minus or numeric
qualifier) the rating on the unsecured long term debt of the Trustee must be at
least "AA" by Fitch and "Aa2" by Moody's, or meet different standards provided
that each Rating Agency shall have confirmed in writing that such different
standards would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates) and subject
to supervision or examination by federal or state authority and shall not be an
Affiliate of the Servicer or the Co-Servicer (except during any period when the
Trustee has assumed the duties of the Servicer or the Co-Servicer pursuant to
Section 7.02); provided that, notwithstanding that the long-term unsecured debt
of LaSalle National Bank is not rated by Fitch, LaSalle National Bank shall not
fail to qualify as Trustee solely by virtue of the lack of such ratings until
such time as Fitch shall notify the Trustee, the Servicer, the Co-Servicer and
the Special Servicer in writing that LaSalle National Bank is no longer exempt
from the foregoing rating requirements imposed by this sentence. If a
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for purposes of this Section the combined capital and surplus of
such corporation 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 that the
place of business from which the Trustee administers the Trust Fund is a state
or local jurisdiction that imposes a tax on the Trust Fund or 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 and
continue as Trustee or (iii) administer the Trust Fund from a state and local
jurisdiction that does not impose such a tax. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Servicer, the
Co-Servicer, the Operating Advisor, the Special Servicer and each Rating Agency.
Upon such notice of resignation, the Fiscal Agent shall also be deemed to have
been removed and, accordingly, the Servicer shall promptly appoint a successor
Trustee, the appointment of which would not, as evidenced in writing, in and of
itself, result in a downgrade, qualification or withdrawal by any Rating Agency
of the then-current ratings assigned to the Certificates, and a successor Fiscal
Agent (if necessary to satisfy the requirements contained in Section 8.06), the
appointment of which, if the successor Trustee is not rated by each Rating
Agency in one of its two highest long-term debt rating categories, would not, as
evidenced in writing, in and of itself, result in a downgrade, qualification or
withdrawal by any Rating Agency of the then-current ratings assigned to the
Certificates, by written instrument, in triplicate, which instrument shall be
delivered to the resigning Trustee, with a copy to the Fiscal Agent deemed
removed, and the successor Trustee and successor Fiscal Agent. If no successor
Trustee and successor Fiscal Agent shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee and the Fiscal Agent may petition any court
of competent jurisdiction for the appointment of a successor Trustee and
successor Fiscal Agent.
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, Servicer or the Co-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, or upon a confirmation in writing by any Rating Agency that not
terminating the Trustee, or the Fiscal Agent, as applicable, would, in and of
itself, cause the then-current rating assigned to any Class of Certificates to
be qualified, withdrawn or downgraded, then the Depositor or the Servicer shall
remove the Trustee and the Fiscal Agent and the Servicer shall promptly appoint
a successor Trustee and successor Fiscal Agent by written instrument, which
shall be delivered to the Trustee and the Fiscal Agent so removed and to the
successor Trustee and the successor Fiscal Agent.
The Holders of Certificates entitled to at least 50% of the Voting Rights
may at any time remove the Trustee and the Fiscal Agent (and any removal of the
Trustee shall be deemed to be a removal also of the Fiscal Agent) and appoint a
successor Trustee and successor Fiscal Agent by written instrument or
instruments, in eight originals, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Servicer, one complete
set to the Co-Servicer, one complete set to the Operating Advisor, one complete
set to the Trustee so removed, one complete set to the Fiscal Agent deemed
removed, one complete set to the successor Trustee so appointed and one complete
set to the successor Fiscal Agent so appointed.
In the event of removal of the Trustee, the Fiscal Agent shall be deemed to
have been removed.
In the event that the Trustee or Fiscal Agent is terminated or removed
pursuant to this Section 8.07, all of its rights and obligations under this
Agreement and in and to the Mortgage Loans shall be terminated, other than any
rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and appointment
of a successor Trustee and, if such trustee is not rated at least "AA" by each
Rating Agency, a successor Fiscal Agent pursuant to any of the provisions of
this Section 8.07 shall not become effective until acceptance of appointment by
the successor Trustee and, if necessary, successor Fiscal Agent as provided in
Section 8.08.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, to the Servicer, to the Co-Servicer, to the Operating Advisor and to
the predecessor Trustee and predecessor Fiscal Agent, as the case may be,
instruments accepting their appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee and predecessor Fiscal Agent shall become
effective and such successor Trustee and successor Fiscal Agent, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with the like
effect as if originally named as Trustee or Fiscal Agent herein, provided that
the appointment of such successor Trustee and successor Fiscal Agent shall not,
as evidenced in writing, result in a downgrade, qualification or withdrawal of
the then-current ratings assigned to the Certificates. The predecessor Trustee
shall deliver to the successor Trustee all Mortgage Files and related documents
and statements held by it hereunder, and the Depositor and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor Trustee all such rights, powers, duties and obligations. 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.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such Trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or Fiscal Agent appointed pursuant to this
Agreement shall satisfy the eligibility requirements set forth in Section 8.06
hereof.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation 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.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
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
Depositor 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 (at the expense of the Trustee) 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 Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-trustee or separate trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. 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
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), 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 Co-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 solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason of any
act or omission of any other trustee under this Agreement. The Depositor and the
Trustee acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, or if the separate trustee or co-trustee is an
employee of the Trustee, the Trustee acting alone may accept the resignation of
or remove any separate trustee or co-trustee.
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. Every such instrument shall be filed with the Trustee.
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. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of affecting the liability of or affording protection to
such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
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.
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial Fiscal
Agent hereunder for the purposes of exercising and performing the obligations
and duties imposed upon the Fiscal Agent by Sections 3.24 and 4.06.
(b) The Fiscal Agent undertakes to perform such duties and only such duties
as are specifically set forth in Sections 3.24 and 4.06.
(c) No provision of this Agreement shall be construed to relieve the Fiscal
Agent from liability for its own negligent failure to act or its own willful
misfeasance or for a breach of a representation or warranty contained herein;
provided, however, that (i) the duties and obligations of the Fiscal Agent shall
be determined solely by the express provisions of Sections 3.24 and 4.06, the
Fiscal Agent shall not be liable except for the performance of such duties and
obligations, no implied covenants or obligations shall be read into this
Agreement against the Fiscal Agent and, in the absence of bad faith on the part
of the Fiscal Agent, the Fiscal Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Fiscal Agent by the Depositor, the Servicer,
the Co-Servicer, the Special Servicer or the Trustee and which on their face do
not contradict the requirements of this Agreement, and (ii) the provisions of
clause (ii) of Section 8.01(c) shall apply to the Fiscal Agent.
(d) Except as otherwise provided in Section 8.11(c), the Fiscal Agent also
shall have the benefit of provisions of clauses (i), (ii), (iii) (other than the
proviso thereto), (iv), (v) (other than the proviso thereto) and (vi) of Section
8.02(a).
<PAGE>
ARTICLE IX
TERMINATION
SECTION 9.01. Termination.
(a) The respective obligations and responsibilities of the Servicer, the
Co-Servicer, the Operating Advisor, the Special Servicer, the Depositor, the
Trustee and the Fiscal Agent created hereby with respect to the Certificates
(other than the obligation to make certain payments and to send certain notices
to Certificateholders as hereinafter set forth) shall terminate immediately
following the occurrence of the last action required to be taken by the Trustee
pursuant to this Article IX on the Termination Date; provided, however, that in
no event shall the trust created hereby continue beyond the expiration of
twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late Ambassador of the United States to the United
Kingdom, living on the date hereof.
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC shall be
terminated and the assets of the Trust Fund shall be sold or otherwise disposed
of in connection therewith, only pursuant to a "plan of complete liquidation"
within the meaning of Code Section 860F(a)(4)(A) providing for the actions
contemplated by the provisions hereof pursuant to which the applicable Notice of
Termination is given and requiring that the Trust Fund, the Upper-Tier REMIC and
the Lower-Tier REMIC shall terminate on a Distribution Date occurring not more
than 90 days following the date of adoption of the plan of complete liquidation.
For purposes of this Section 9.01(b), the Notice of Termination given pursuant
to Section 9.01(c) shall constitute the adoption of the plan of complete
liquidation as of the date such notice is given, which date shall be specified
by the Trustee in the final federal income tax returns of the Upper-Tier REMIC
and the Lower-Tier REMIC. Notwithstanding the termination of the Trust REMICs or
the Trust Fund, the Trustee shall be responsible for filing the final Tax
Returns for the Trust REMICs and applicable income tax or information returns
for the Grantor Trust for the period ending with such termination, and shall
retain books and records with respect to the Trust REMICs and the Grantor Trust
for the same period of retention for which it maintains its own tax returns or
other reasonable period.
(c) The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date specifying the Anticipated Termination Date, on any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans remaining in the Trust Fund is less than 1% of the Initial Pool
Balance, by purchasing on such date all, but not less than all, of the Mortgage
Loans and REO Property then included in the Trust Fund, and all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in cash,
equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage Loan
included in the Trust Fund as of the last day of the month
preceding such Distribution Date (less any P&I Advances
previously made on account of principal);
(B) the fair market value of all other property included in the Trust
Fund as of the last day of the month preceding such Distribution
Date, as determined by an Independent appraiser acceptable to the
Servicer as of the date not more than 30 days prior to the last
day of the month preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of each
such Mortgage Loan (including for this purpose any Mortgage Loan
as to which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate (plus the Excess Rate, to the
extent applicable), to the last day of the month preceding such
Distribution Date (less any P&I Advances previously made on
account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon, and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month preceding
such Distribution Date, as determined by an Independent Appraiser
acceptable to the Servicer, together with one month's interest thereon
at the Mortgage Rate.
All costs and expenses incurred by any and all parties to this Agreement or
by the Trust Fund in connection with the purchase of the Mortgage Loans and
other assets of the Trust Fund pursuant to this Section 9.01(c) shall be borne
by the party exercising its purchase rights hereunder. The Trustee shall be
entitled to rely conclusively on any determination made by an Independent
appraiser pursuant to this subsection (c).
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 the Net Default Interest, as
their interests may appear, 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 Fund
allocable to Excess Interest, as their interests may appear.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance of each Certificate or Lower-Tier
Regular Interest, together with amounts required to be distributed on such
Distribution Date pursuant to Section 4.01(a), (b), (c) or (d) or (ii) if no
such Classes of Certificates are then outstanding, to the Holders of the Class
LR Certificates of any amount remaining in the Collection Account or the
Distribution Account, to the Holders of the Class R Certificates of any amount
remaining in the Upper-Tier Distribution Account, to the Holders of the Class
V-1 Certificates of any amount remaining in the Default Interest Distribution
Account, to the Holders of the Class V-2 Certificates of any amount remaining in
the Excess Interest Distribution Account, to the Holders of the Class PS-1
Certificates of any amount remaining in the Repurchase Price Return of Premium
Distribution Account, and to the Depositor of any amount remaining in the
Post-Lock Out Return of Premium Distribution Account, in each case, following
the later to occur of (A) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund or (B) the liquidation or
disposition pursuant to Section 3.18 of the last asset held by the Trust Fund.
(e) Notice of any termination of the Trust Fund pursuant to this Section
9.01 shall be mailed by the Trustee to affected Certificateholders with a copy
to the Servicer, the Co-Servicer and each Rating Agency at their addresses shown
in the Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of
the Classes specified therein;
(ii) specify the amount of any such final distribution, if known; and
(iii)state that the final distribution to Certificateholders will be made
only upon presentation and surrender of Certificates at the office of
the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts transferred to
the Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(g) The Holder of a 100% Percentage Interest in the Class LR Certificates
may purchase any Mortgage Loan on its Anticipated Repayment Date, if any, at a
price equal to the sum of the following:
(i) 100% of the outstanding principal balance of such Mortgage 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 Mortgage
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 Mortgage Loan, with interest thereon at the Advance Rate, and
unpaid Special Servicing Compensation, Servicing Compensation, Trustee
Fees and Trust Fund expenses; and
(iv) the amount of any Liquidation Expenses incurred by the Trust Fund in
connection with such purchase;
provided, that, such Holder, at its expense, has provided the Trustee with an
Opinion of Counsel to the effect that such purchase would not (x) 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 the Lower-Tier REMIC or the Upper-Tier REMIC
under the REMIC Provisions or (y) cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC; such opinion relying upon
appraisals of the fair market value (for the purposes of Section 860F(c)(1) of
the Code) of such Mortgage Loan by at least three Independent appraisers.
Notwithstanding the foregoing, such Mortgage Loan may not be purchased if
the fair market value of the Mortgage Loan is greater than 100% of the
outstanding principal balance of such Mortgage Loan.
The Holder of 100% of the most subordinate Class of Sequential Certificates
(provided that the Class B-6H Certificates shall not be considered a Class for
such purposes) may purchase any Mortgage Loan on or after its Anticipated
Repayment Date under the same terms and conditions hereunder as in the case of a
purchase by the Holder of the Class LR Certificates if the Holder of the Class
LR Certificates either (i) notifies the Holder of the most subordinate Class of
Sequential Certificates that it will not purchase such Mortgage Loan or (ii)
does not, in fact, purchase such Mortgage Loan on its Anticipated Repayment
Date.
The proceeds of any such purchase hereunder shall be deposited in the
Collection Account and disbursed as provided herein.
Notwithstanding anything to the contrary contained in this Section 9.01(g),
if the Class LR or most subordinate Class of Certificates shall be held by an
Affiliate of the Depositor, such Affiliate may not exercise any of the purchase
rights under this Section 9.01(g) with respect to a Mortgage Loan that is in
default.
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
SECTION 10.02. Limitation on Rights of Certificateholders.
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.
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 person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Mortgage Loan, unless such Holder previously shall have given to the
Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
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. 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 of any Class shall have any right in any manner whatever 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, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
(a) All demands, notices and communications hereunder shall be in writing,
shall be deemed to have been given upon receipt (except that notices to Holders
of Class B-6, Class B-6H, Class V-1, Class V-2, Class R and Class LR
Certificates or Holders of any Class of Certificates no longer held through a
Depository and instead held in registered, definitive form shall be deemed to
have been given upon being sent by first class mail, postage prepaid) as
follows:
If to the Trustee, to:
LaSalle National Bank
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services, CCA 1998-D7
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
135 South LaSalle Street,
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities
Trust Services, CCA 1998-D7
If to the Depositor, to:
CAPCO America Securitization Corporation
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Perry Gershon
and to:
CAPCO America Securitization Corporation
101 California Street San
Francisco, CA 94111
Attention: Marlyn A. Marincas
With a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Anna H. Glick
If to the Servicer, to:
The Capital Company of America
Client Services LLC
600 East Las Colinas
Boulevard Irving, Texas 75039
Attention: General Counsel
With a copy to:
Powell, Goldstein, Frazer & Murphy LLP
1001 Pennsylvania Avenue, N.W.
Suite 600 South
Washington, D.C. 20004
If to the Co-Servicer and the Operating Advisor, to:
AMRESCO Services, L.P.
235 Peachtree Street, Suite 900
Atlanta, Georgia 30303
Attention: Portfolio Manager CCA-1998-D7
With copies to:
AMRESCO Services, L.P.
235 Peachtree Street, Suite 900
Atlanta, Georgia 30303
Attention: Legal Counsel
and to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Paul T. Cohn
If to the Special Servicer, to:
AMRESCO Management, Inc.
700 North Pearl Street, Suite 2400
Dallas, Texas 75201
Attention: Michael Carp
With copies to:
AMRESCO Management, Inc.
700 North Pearl Street, Suite 2400
Dallas, Texas 75201
Attention: General Counsel
If to either Mortgage Loan Seller, to:
The Capital Company of America LLC
2 World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Attention: Perry Gershon
and to:
The Capital Company of America LLC
101 California Street San
Francisco, CA 94111
Attention: Marlyn A. Marincas
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
(b) For so long as any Class A-1A, Class A-1B or Class A-2 Certificates are
listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock
Exchange so require, all notices and communications (other than periodic reports
relating to the assets of the Trust Fund) shall be published in a leading daily
newspaper of general circulation in Luxembourg approved by the Trustee and the
Luxembourg Paying Agent or, if in the opinion of the Trustee or the Luxembourg
Paying Agent, such publication shall not be practicable, in an English language
newspaper of general circulation in Europe. Any such notice shall be deemed to
have been given on the date of such publication, or, if published more than once
or on different dates, on the first date on which publication in such newspaper
is made.
SECTION 10.05. 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, to the
extent permitted by applicable law, 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 10.06. Notice to the Depositor and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide notice to
the Depositor, each Underwriter and 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 merger, consolidation, resignation or termination of the
Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d) or
2.03(e);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account or the
Distribution Account;
(vii)any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Servicer;
(viii) each report to Certificateholders described in Section 4.02 and
Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
(x) any new lease of an anchor or a termination of an anchor lease at a
retail Mortgaged Property;
(xi) any termination of licensing certification at a Mortgaged Property
securing a Senior Housing/Healthcare Loan;
(xii) any material damage to a Mortgaged Property;
(xiii) any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan; and
(xiv) any substitution or release of collateral hereunder.
(b) The Servicer shall promptly furnish to each Rating Agency (and to the
Special Servicer with respect to clause (iii) and (iv) below) copies of the
following:
(i) each of its annual statements as to compliance described in Section
3.14;
(ii) each of its annual independent public accountants' servicing reports
described in Section 3.15;
(iii)a copy of each rent roll and each operating and other financial
statement and occupancy reports, to the extent such information is
required to be delivered under a Mortgage Loan, in each case to the
extent collected pursuant to Section 3.03; however, with respect to
Fitch, the Servicer shall provide only the quarterly and annual
statements or reports (and with respect to the Special Servicer, such
information shall be delivered quarterly, other than information
related to Mortgage Loans that are on the Watch List, unless the
Special Servicer agrees to reimburse the Servicer for the cost of
delivering such information); and
(iv) a copy of any notice with respect to a breach of a representation or
warranty with respect to any Mortgage Loan.
(c) The Servicer shall furnish each Rating Agency, each Underwriter and the
Depositor with such information with respect to the Trust Fund, a Mortgaged
Property, a Borrower and any Mortgage Loan as such Rating Agency, such
Underwriter or the Depositor shall reasonably request and which the Servicer can
reasonably obtain. The Rating Agencies shall not be charged any fee or expense
in connection therewith. The Servicer shall send copies to the Depositor of any
information provided to any Rating Agency.
(d) Notices to each Rating Agency shall be addressed as follows:
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Attention: Commercial Mortgage Surveillance
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Managing Director
Commercial Mortgage-Backed Securities
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto. In addition, with respect to any request
for Rating Agency confirmation pursuant to any of the provisions of this
Agreement, the party seeking such Rating Agency confirmation shall deliver a
copy of such request to the Depositor.
SECTION 10.07. Amendment.
This Agreement or any Custodial Agreement may be amended from time to time
by the Depositor, the Servicer, the Co-Servicer, the Operating Advisor, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions herein or therein, (iii) to amend any
provision hereof to the extent necessary or desirable to maintain the rating or
ratings assigned to each of the Classes of Regular Certificates by each Rating
Agency, (iv) to amend or supplement any provisions herein or therein that shall
not adversely affect in any material respect the interests of any
Certificateholder not consenting thereto, as evidenced in writing by an Opinion
of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, (v) to amend or supplement
any provisions hereof to the extent necessary or desirable to enable the
Certificates to be listed in the Luxembourg Stock Exchange (Bureau de
Luxembourg) or (vi) to make any other provisions with respect to matters or
questions arising under this Agreement, which shall not be inconsistent with the
provisions of this Agreement and will not result in a downgrade, qualification
or withdrawal of the then-current rating or ratings then assigned to any
outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
This Agreement or any Custodial Agreement may also be amended from time to
time by the Depositor, the Servicer, the Co-Servicer, the Operating Advisor, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under this
Agreement, without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or Classes
affected hereby;
(iii)alter the Servicing Standard or the obligations of the Servicer, the
Co-Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
make a P&I Advance or Property Advance without the consent of the
Holders of all Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of all the holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Operating
Advisor, the Special Servicer, the Trustee and the Fiscal Agent, at any time and
from time to time, without the consent of the Certificateholders, may amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary to maintain the qualification of the Trust REMIC as two
separate REMICs, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
however, that such action, as evidenced by an Opinion of Counsel (obtained at
the expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
In the event that neither the Depositor nor any successor thereto, if any,
is in existence, any amendment under this Section 10.07 shall be effective with
the consent of the Trustee, the Fiscal Agent, the Special Servicer, the
Co-Servicer, the Operating Advisor and the Servicer, in writing, and to the
extent required by this Section, the Certificateholders. Promptly after the
execution of any amendment, the Servicer shall forward to the Trustee and the
Trustee shall furnish written notification of the substance of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.07 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
method 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; provided, however, that such method
shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Servicer and/or the Trustee, the Servicer and the Trustee shall have
received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by either Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i) or (ii) of the first sentence of this Section, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier 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 (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property).
Prior to the execution of any amendment to this Agreement or any Custodial
Agreement, the Trustee, the Fiscal Agent, the Special Servicer, the Co-Servicer,
the Operating Advisor and the Servicer may request and shall be entitled to rely
conclusively upon an Opinion of Counsel, at the expense of the party requesting
such amendment (or, if such amendment is required by either Rating Agency to
maintain the rating issued by it or requested by the Trustee for any purpose
described in clause (i), (ii), (iii) or (v) (which do not modify or otherwise
relate solely to the obligations, duties or rights of the Trustee) of the first
sentence of this Section, then at the expense of the Trust Fund) stating that
the execution of such amendment is authorized or permitted by this Agreement.
The Trustee and the Fiscal Agent may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's or the Fiscal Agent's own rights,
duties or immunities under this Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund (including the Mortgage Loans) by the Depositor to the Trustee on
behalf of Certificateholders as contemplated by this Agreement and the sale by
the Depositor of the Certificates be, and be treated for all purposes as, a sale
by the Depositor of the undivided portion of the beneficial interest in the
Trust Fund represented by the Certificates. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Trust Fund by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the Trust
Fund is held to continue to be property of the Depositor then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Trust Fund provided for herein shall be deemed to be a grant by
the Depositor to the Trustee on behalf of Certificateholders of a first priority
security interest in all of the Depositor's right, title and interest in and to
the Trust Fund and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, the Distribution Account, Upper-Tier
Distribution Account, Default Interest Distribution Account, Excess Interest
Distribution Account, Repurchase Price Return of Premium Distribution Account
and Post-Lock Out Return of Premium Distribution Account whether in the form of
cash, instruments, securities or other property; (c) the possession by the
Trustee (or the Custodian on its behalf) of Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the Delaware and
Illinois Uniform Commercial Code; and (d) notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from Persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Trustee pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby. The Depositor shall, and upon the request of the
Servicer, the Trustee shall, to the extent consistent with this Agreement (and
at the expense of the Trust Fund), take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement. It is the intent of the parties
that such a security interest would be effective whether any of the Certificates
are sold, pledged or assigned.
SECTION 10.09. Streit Act.
Any provisions required to be contained in this Agreement by Section 126
and/or Section 130-k or Article 4-A of the New York Real Property Law are hereby
incorporated herein, and such provisions shall be in addition to those conferred
or imposed by this Agreement; provided, however, that to the extent that such
Section 126 and/or Section 130-k shall not have any effect, and if said Section
126 and/or Section 130-k should at any time be repealed or cease to apply to
this Agreement or be construed by judicial decision to be inapplicable, said
Section 126 and/or Section 130-k shall cease to have any further effect upon the
provisions of this Agreement. In case of a conflict between the provisions of
this Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail,
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed, or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
SECTION 10.10. No Intended Third-Party Beneficiaries.
No Person other than a party to this Agreement and any Certificateholder
shall have any rights with respect to the enforcement of any of the rights or
obligations hereunder. Without limiting the foregoing, the parties to this
Agreement specifically state that no Borrower, property manager or other party
to a Mortgage Loan is an intended third-party beneficiary of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Servicer, the Co-Servicer, the
Operating Advisor, the Special Servicer, the Trustee and the Fiscal Agent have
caused their names to be signed hereto by their respective officers thereunto
duly authorized all as of the day and year first above written.
Signed and acknowledged CAPCO AMERICA SECURITIZATION
in the presence of CORPORATION,
as Depositor
- ---------------------------
Print Name: By:
----------------------------------
Name:
- --------------------------- Title:
Print Name:
Signed and acknowledged THE CAPITAL COMPANY OF AMERICA
in the presence of CLIENT SERVICES LLC,
as Servicer
- ---------------------------
Print Name: By:
----------------------------------
Ann Hambly, President
- ---------------------------
Print Name:
Signed and acknowledged AMRESCO Services, L.P.,
in the presence of as Co-Servicer
By: AMRESCO MORTGAGE CAPITAL,
- --------------------------- INC.,
Print Name: its General Partner
- --------------------------- By:
Print Name: ----------------------------------
Name:
Title
Signed and acknowledged AMRESCO SERVICES, L.P.,
in the presence of as Operating Advisor
By: AMRESCO Mortgage Capital, Inc.
- --------------------------- its General Partner
Print Name:
By:
----------------------------------
- --------------------------- Name:
Print Name: Title:
Signed and acknowledged AMRESCO MANAGEMENT, INC.,
in the presence of as Special Servicer
- --------------------------- By:
Print Name: ----------------------------------
Name:
Title:
- ---------------------------
Print Name:
Signed and acknowledged LASALLE NATIONAL BANK,
in the presence of: as Trustee, Custodian, Certificate
Registrar and Paying Agent
- ---------------------------
Print Name: By:
----------------------------------
Name:
- ---------------------------- Title:
Print Name:
Signed and acknowledged ABN AMRO BANK N.V.,
in the presence of as Fiscal Agent
- ----------------------------- By:
Print Name: ----------------------------------
Name:
Title:
- -----------------------------
Print Name:
<PAGE>
ACCEPTED AND AGREED TO SOLELY
WITH RESPECT TO SECTION 3.28(c):
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
By:
--------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On this _____ day of September, 1998, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared _____________ , to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at Two World Financial Center,
New York, New York; that s/he is the _____________ of CAPCO AMERICA
SECURITIZATION CORPORATION, a Delaware corporation, the corporation described in
and that executed the foregoing instrument; and that s/he signed her/his name
thereto under authority of the board of directors of said corporation and on
behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------
Name: Cadwalader, Wickersham & Taft
Address: 100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF __________)
) ss.:
COUNTY OF ________ )
On this ____ day of September, 1998, before me, the undersigned, a Notary
Public in and for the State of __________, duly commissioned and sworn,
personally appeared _____________________, to me known who, by me duly sworn,
did depose and acknowledge before me and say that s/he resides at
______________________________________; that s/he is the _____________________
of [CAPITAL COMPANY OF AMERICA CLIENT SERVICES LLC], the corporation described
in and that executed the foregoing instrument; and that he/she signed his/her
name thereto under authority of the board of directors of said corporation and
on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of _____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF __________ )
) ss.:
COUNTY OF ________ )
On this ____ day of September, 1998, before me, the undersigned, a Notary
Public in and for the State of _______, duly commissioned and sworn, personally
appeared _____________________, to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at
__________________________________________ ; that s/he is the
____________________ of AMRESCO MORTGAGE CAPITAL, INC., the company described in
and that executed the foregoing instrument; and that he/she signed his/her name
thereto under authority of the board of directors of said corporation and on
behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-------------------------------
NOTARY PUBLIC in and for the
State of ___________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this ____ day of September, 1998, before me, the undersigned, a Notary
Public in and for the State of _______, duly commissioned and sworn, personally
appeared _____________________, to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at
__________________________________________ ; that s/he is the
____________________ of AMRESCO MANAGEMENT, INC., the company described in and
that executed the foregoing instrument; and that he/she signed his/her name
thereto under authority of the board of directors of said corporation and on
behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-------------------------------
NOTARY PUBLIC in and for the
State of ____________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ________________)
) ss.:
COUNTY OF _______________)
On this ____ day of September, 1998, before me, the undersigned, a Notary
Public in and for the State of ________, duly commissioned and sworn, personally
appeared _____________________, to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at
___________________________; that s/he is a ________________ of LASALLE NATIONAL
BANK, a nationally chartered bank, the corporation described in and that
executed the foregoing instrument; and that he/her signed his/her name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
-------------------------------
NOTARY PUBLIC in and for the
State of _________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
STATE OF ____________)
) ss.:
COUNTY OF ___________)
On this ____ day of September, 1998, before me, the undersigned, a Notary
Public in and for the State of __________________, duly commissioned and sworn,
personally appeared ___________________, to me known who, by me duly sworn, did
depose and acknowledge before me and say that s/he resides at
______________________________; that s/he is a _____________ of ABN AMRO BANK
N.V., a nationally chartered bank, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of ___________________
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
- ---------------------------
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
<PAGE>
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7 CLASS A-1A
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1A Certificates: October 15, 2028
$264,500,000
CUSIP: 12476V A A 9 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: A-1A-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-1A Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are Class A-1B, Class A-2, Class A-3, Class A-4, Class A-5, Class
PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class A-1A Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-1A Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-1A Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder hall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1A Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, 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 Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1A Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1A
Certificate of the entire Percentage Interest represented by the within Class
A-1A Certificates to the above-named Assignee(s) and to deliver such Class A-1A
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS A-1B
Pass-Through Rate: 6.2600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-1B Certificates: October 15, 2028
$632,344,698
CUSIP: 12476V A T 8 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
No.: A-1B-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-1B Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-2, Class A-3, Class A-4, Class A-5, Class
PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
A-1B Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-1B Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-1B Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-1B Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, 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 Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-1B Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-1B
Certificate of the entire Percentage Interest represented by the within Class
A-1B Certificates to the above-named Assignee(s) and to deliver such Class A-1B
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS A-2 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS A-2
Pass-Through Rate: 6.4600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-2 Certificates: October 15, 2028
$62,280,882
CUSIP: 12476V A B 7 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: A-2-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-2 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-3, Class A-4, Class A-5, Class
PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class A-2 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-2 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-2 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-2 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-2
Certificate of the entire Percentage Interest represented by the within Class
A-2 Certificates to the above-named Assignee(s) and to deliver such Class A-2
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS A-3 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS A-3
Pass-Through Rate: 6.7400%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-3 Certificates: October 15, 2028
$68,508,970
CUSIP: 12476V A C 5 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: A-3-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-3 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-4, Class A-5, Class
PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class A-3 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-3 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-3 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-3 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-3 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-3
Certificate of the entire Percentage Interest represented by the within Class
A-3 Certificates to the above-named Assignee(s) and to deliver such Class A-3
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS A-4 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS A-4
Pass-Through Rate: 7.2300%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-4 Certificates: October 15, 2028
$59,166,838
CUSIP: 12476V A D 3 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: A-4-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-4 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-5, Class
PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class A-4 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-4 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-4 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-4 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-4 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-4 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-4
Certificate of the entire Percentage Interest represented by the within Class
A-4 Certificates to the above-named Assignee(s) and to deliver such Class A-4
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS A-5 CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 96.234293%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 4.08646452%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 8.43%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.01665646%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS A-5
Pass-Through Rate: 7.6932%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class A-5 Certificates: October 15, 2028
$21,798,308
CUSIP: 12476V A E 1 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: A-5-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class A-5 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class A-5 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class A-5 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class A-5 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class A-5 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class A-5 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class A-5 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class A-5
Certificate of the entire Percentage Interest represented by the within Class
A-5 Certificates to the above-named Assignee(s) and to deliver such Class A-5
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-7
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THE CERTIFICATES ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A BENEFICIAL
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND IN CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AT AN ISSUE PRICE OF 9.425289%
OF THE INITIAL CLASS PS-1 NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A
STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON,
AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH
FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD LOAN WILL PREPAY ON ITS
ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE LOAN WILL NOT PREPAY:
(I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL CLASS PS-1 NOTIONAL AMOUNT
IS APPROXIMATELY 4.74473051%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.36%; AND (III) THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER
15, 1998) AS A PERCENTAGE OF THE INITIAL CLASS PS-1 NOTIONAL AMOUNT, CALCULATED
USING THE EXACT METHOD, IS APPROXIMATELY 0.03669663%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS PS-1
Pass-Through Rate: 1.4846%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class PS-1 Certificates: October 15, 2028
$1,245,617,638
CUSIP: 12476V A F 8 ISIN: US [-----------]
Common Code: Initial Notional
Balance of this Certificate:
$
No.: PS-1-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class PS-1 Certificates. The Class PS-1 Certificateholder will
also be entitled to receive that portion of any Repurchase Price constituting
clause (v) of the definition thereof as set forth in the Pooling and Servicing
Agreement (as defined below). The Trust Fund, described more fully below,
consists primarily of a pool of Mortgage Loans secured by first liens and a
second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
PS-1 Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of interest then distributable, if any, allocable to the Class
PS-1 Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums, as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class PS-1 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class PS-1 Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class PS-1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class PS-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class PS-1
Certificate of the entire Percentage Interest represented by the within Class
PS-1 Certificates to the above-named Assignee(s) and to deliver such Class PS-1
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED
FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE
ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THE CLASS B-1 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 73.431578%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 26.81258890%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 10.11%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.06462150%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS B-1
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-1 Certificates: October 15, 2028
$31,140,441
CUSIP: 12476V A G 6 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: B-1-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-1 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
A-5, Class PS-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class B-1 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-1 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-1 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-1 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-1 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-1
Certificate of the entire Percentage Interest represented by the within Class
B-1 Certificates to the above-named Assignee(s) and to deliver such Class B-1
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-9
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED
FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE
ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THE CLASS B-2 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 73.356276%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 26.88789101%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 10.11%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.06430530%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS B-2
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-2 Certificates: October 15, 2028
$28,026,397
CUSIP: 12476V A H 4 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: B-2-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-2 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
A-5, Class PS-1, Class B-1, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class B-2 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-2 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-2 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-2 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-2 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-2
Certificate of the entire Percentage Interest represented by the within Class
B-2 Certificates to the above-named Assignee(s) and to deliver such Class B-2
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-10
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED
FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE
ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THE CLASS B-3 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 66.289078%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 33.95508886%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 11.55%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.07401963%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS B-3
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-3 Certificates: October 15, 2028
$15,570,220
CUSIP: 12476V A J 0 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: B-3-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-3 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
A-5, Class PS-1, Class B-1, Class B-2, Class B-4, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class B-3 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-3 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-3 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-3 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-3 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-3 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-3
Certificate of the entire Percentage Interest represented by the within Class
B-3 Certificates to the above-named Assignee(s) and to deliver such Class B-3
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-11
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED
FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE
ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THE CLASS B-4 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 61.066678%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 39.17748890%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 12.74%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.07904443%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS B-4
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-4 Certificates: October 15, 2028
$24,912,353
CUSIP: 12476V A K 7 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: B-4-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-4 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
A-5, Class PS-1, Class B-1, Class B-2, Class B-3, Class B-5, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class B-4 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-4 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-4 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-4 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-4 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-4 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-4
Certificate of the entire Percentage Interest represented by the within Class
B-4 Certificates to the above-named Assignee(s) and to deliver such Class B-4
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-12
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED
FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE
ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THE CLASS B-5 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 55.574878%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 44.66928889%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 14.15%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.08264735%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS B-5
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-5 Certificates: October 15, 2028
$15,570,221
CUSIP: 12476V A L 5 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: B-5-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-5 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
A-5, Class PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-6, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class B-5 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-5 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-5 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-5 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-5 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-5 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-5
Certificate of the entire Percentage Interest represented by the within Class
B-5 Certificates to the above-named Assignee(s) and to deliver such Class B-5
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-13
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED
FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL
INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE" (EACH AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE
ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THE CLASS B-6 CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES
AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 27.452678%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 72.79148891%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 26.49%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.05723226%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS B-6
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Certificate Balance of the Distribution Date:
Class B-6 Certificates: October 15, 2028
$21,797,309
CUSIP: 12476V A M 3 ISIN: US [-----------]
Common Code: Initial Certificate
Balance of this Certificate:
$
No.: B-6-
This certifies that Cede & Co. is the registered owner of a beneficial
ownership interest in a Trust Fund, including the distributions to be made with
respect to the Class B-6 Certificates. The Trust Fund, described more fully
below, consists primarily of a pool of Mortgage Loans secured by first liens and
a second lien on commercial properties and held in trust by the Trustee and
serviced by the Servicer. The Trust Fund was created, and the Mortgage Loans are
to be serviced, pursuant to the Pooling and Servicing Agreement (as defined
below). The Holder of this Certificate, by virtue of the acceptance hereof,
assents to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class
A-5, Class PS-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6H, Class V-1, Class V-2, Class R and Class LR Certificates (together with the
Class B-6 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class B-6 Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-6 Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Regular Certificates by
each Rating Agency, (iv) to amend or supplement any provisions in such
agreements that shall not adversely affect in any material respect the interests
of any Certificateholder not consenting thereto, as evidenced in writing by an
Opinion of Counsel, at the expense of the party requesting such amendment or
confirmation in writing from each Rating Agency that such amendment or
supplement will not result in a qualification, withdrawal or downgrading of the
then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement, which shall not be inconsistent with the provisions of the
Pooling and Servicing Agreement and will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings then assigned
to any outstanding Class of Certificates, as confirmed by each Rating Agency in
writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-6 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-6 Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-6 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-6
Certificate of the entire Percentage Interest represented by the within Class
B-6 Certificates to the above-named Assignee(s) and to deliver such Class B-6
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-14
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CLASS B-6H CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA,
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY
SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED
FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2
OF THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE IS ISSUED ON SEPTEMBER 30, 1998, AND BASED ON ITS ISSUE PRICE
OF 27.452000%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 15 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION THAT EACH ARD
LOAN WILL PREPAY ON ITS ANTICIPATED REPAYMENT DATE AND THAT EACH OTHER MORTGAGE
LOAN WILL NOT PREPAY: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL
PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 72.79216667%; (II) THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY 26.49%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST
ACCRUAL PERIOD (SEPTEMBER 30, 1998 TO OCTOBER 15, 1998) AS A PERCENTAGE OF THE
INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY 0.05723072%.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS B-6H
Pass-Through Rate: 5.8600%
First Distribution Date: Cut-off Date: September 11, 1998
October 16, 1998
Aggregate Initial Scheduled Final
Notional Balance of the Distribution Date:
Class B-6H Certificates: October 15, 2028
$1,000
CUSIP: 12476V A N 1
Initial Notional
Balance of this Certificate:
$
No.: B-6H-
This certifies that CAPCO America Securitization Corporation is the
registered owner of a beneficial ownership interest in a Trust Fund, including
the distributions to be made with respect to the Class B-6H Certificates. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens and a second lien on commercial properties and held
in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are Class A-1A, Class A-1B, Class A-2, Class
A-3, Class A-4, Class A-5, Class PS-1, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class V-1, Class V-2, Class R and Class LR
Certificates (together with the Class B-6H Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of interest then distributable, if any, allocable to the Class
B-6H Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums, as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on the
Class B-6H Certificates will be calculated based on a 360-day year consisting of
twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual Period,
plus the aggregate unpaid Interest Shortfall with respect to this Certificate,
if any, will be payable on the related Distribution Date to the extent provided
in the Pooling and Servicing Agreement. The "Interest Accrual Period" with
respect to any Distribution Date commences on and includes the eleventh day of
the month preceding the month in which such Distribution Date occurs and ends on
and includes the tenth day of the month in which such Distribution Date occurs.
Each Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Notional Balance. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e) of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision hereof to the
extent necessary or desirable to maintain the rating or ratings assigned to each
of the Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class B-6H Certificate to
be duly executed.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Trustee
By:
------------------------------------------
Authorized Officer
Certificate of Authentication
-----------------------------
This is one of the Class B-6H Certificates referred to in the Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class B-6H Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class B-6H
Certificate of the entire Percentage Interest represented by the within Class
B-6H Certificates to the above-named Assignee(s) and to deliver such Class B-6H
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-15
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL
BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR
AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE
1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS V-1
CUSIP: 12476V A R 2 Percentage Interest: 100%
No.: V-1-
This certifies that CAPCO America Securitization Corporation is the
registered owner of the Percentage Interest evidenced by this Certificate in the
Trust Fund. The Class V-1 Certificateholder is not entitled to interest or
principal distributions The Class V-1 Certificateholder will be entitled to
receive distributions of Net Default Interest received from the borrowers. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens and a second lien on commercial properties and held
in trust by the Trustee and serviced by the Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-2,
Class A-3, Class A-4, Class A-5, Class PS-1, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5, Class B-6, Class B-6H, Class V-2, Class R and Class LR
Certificates (together with the Class V-1 Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the right to receive Default Interest, subject
to the obligation to reimburse the Servicer, the Co-Servicer, the Trustee or the
Fiscal Agent, as applicable, for interest on Advances, and such portion of the
Trust Fund will be treated as a grantor trust for federal income tax purposes.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate Net Default Interest, if any, allocable to the Class V-1 Certificates
for such Distribution Date, all as more fully described in the Pooling and
Servicing Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision hereof to the
extent necessary or desirable to maintain the rating or ratings assigned to each
of the Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class V-1 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, 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 Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class V-1 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class V-1
Certificate of the entire Percentage Interest represented by the within Class
V-1 Certificates to the above-named Assignee(s) and to deliver such Class V-1
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-16
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT, OR (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL, STATE
OR LOCAL LAW (A "SIMILAR LAW") (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL
BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM OF EXHIBIT D-2 OF THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, EXCEPT IN THE CASE
OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE TRANSFERRED UNLESS THE TRANSFEREE
REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH ENTITY SHALL PROVIDE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT
TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT CONSTITUTE
OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407
OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
REGISTRAR TO ANY OBLIGATION OR LIABILITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR
AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE
1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS V-2
Percentage Interest: 100%
CUSIP: 12476V A S 0
No.: V-2-
This certifies that CAPCO America Securitization Corporation is the
registered owner of the Percentage Interest evidenced by this Certificate in the
Trust Fund. The Class V-2 Certificateholder is not entitled to interest or
principal distributions The Class V-2 Certificateholder will be entitled to
receive distributions of Excess Interest received from the borrowers. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens and a second lien on commercial properties and held in
trust by the Trustee and serviced by the Servicer. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1A, Class A-1B, Class A-2, Class
A-3, Class A-4, Class A-5, Class PS-1, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-6H, Class V-1, Class R and Class LR
Certificates (together with the Class V-2 Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the right to receive Excess Interest, which
portion of the Trust Fund will be treated as a grantor trust for federal income
tax purposes.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee,
or the Paying Agent on behalf of the Trustee, will distribute (other than the
final distribution on any Certificate), on the fourth Business Day following the
eleventh day of such month (each such date, a "Distribution Date"); provided,
that if the eleventh day of any month is not a Business Day, the Distribution
Date shall be the fifth Business Day following the eleventh day of such month,
to the Person in whose name this Certificate is registered as of the related
Record Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate Excess Interest, if any, allocable to the Class V-2 Certificates for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision hereof to the
extent necessary or desirable to maintain the rating or ratings assigned to each
of the Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class V-2 Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, 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 Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class V-2 Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class V-2
Certificate of the entire Percentage Interest represented by the within Class
V-2 Certificates to the above-named Assignee(s) and to deliver such Class V-2
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-17
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING
AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT
A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO
PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. IF THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY BE
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY
SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR
MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR ANY
ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR
LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE
TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A
LETTER IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR
AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE
1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS R
CUSIP: 12476V A P 6 Percentage Interest: 100%
No.: R-
This certifies that CAPCO America Securitization Corporation is the
registered owner of the Percentage Interest evidenced by this Certificate in the
Trust Fund. The Class R Certificateholder is not entitled to interest or
principal distributions. The Class R Certificateholder will be entitled to
receive the proceeds of the remaining assets of the Upper-Tier REMIC, if any, on
the Final Scheduled Distribution Date for the Certificates, after distributions
in respect of any accrued but unpaid interest on the Certificates and after
distributions in reduction of principal balance have reduced the principal
balances of the Certificates to zero. It is not anticipated that there will be
any assets remaining in the Upper-Tier REMIC or Trust Fund on the Final
Scheduled Distribution Date following the distributions on the Regular
Certificates. The Trust Fund, described more fully below, consists primarily of
a pool of Mortgage Loans secured by first liens and a second lien on commercial
properties and held in trust by the Trustee and serviced by the Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant to
the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class A-5, Class PS-1, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-6H, Class
V-1, Class V-2 and Class LR Certificates (together with the Class R
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreements; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision hereof to the
extent necessary or desirable to maintain the rating or ratings assigned to each
of the Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, 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 Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class R Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class R
Certificate of the entire Percentage Interest represented by the within Class R
Certificates to the above-named Assignee(s) and to deliver such Class R
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT A-18
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
CERTIFICATES NOR THE UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING
AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT
A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION
860(E)(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR
SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO
PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. IF THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY BE
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY
SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR
MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO RULE 144A UNDER THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A OR (2) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
AS SUCH TERM IS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE, OR ANY
ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH, A
"PLAN"), OR (B) A COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED,
AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR
LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF THIS CERTIFICATE
TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A
LETTER IN THE FORM OF EXHIBIT D-2 OF THE POOLING AND SERVICING AGREEMENT TO SUCH
EFFECT, OR (ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A)
OR (B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY, SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR
ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA
OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE
OR THE CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE FISCAL
AGENT, THE SERVICER, THE CO-SERVICER, THE SPECIAL SERVICER AND THE DEPOSITOR
AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT EXEMPT FROM THE
1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND STATE LAWS.
<PAGE>
CAPCO AMERICA SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-D7, CLASS LR
CUSIP: 12476V A Q 4 Percentage Interest: 100%
No.: LR-
This certifies that CAPCO America Securitization Corporation is the
registered owner of the Percentage Interest evidenced by this Certificate in the
Trust Fund. The Class LR Certificateholder is not entitled to interest or
principal distributions. The Class LR Certificateholder will be entitled to
receive the proceeds of the remaining assets of the Lower-Tier REMIC, if any, on
the Final Scheduled Distribution Date for the Certificates, after distributions
in respect of any accrued but unpaid interest on the Certificates and after
distributions in reduction of principal balance have reduced the principal
balances of the Certificates to zero. It is not anticipated that there will be
any assets remaining in the Lower-Tier REMIC or Trust Fund on the Final
Scheduled Distribution Date following the distributions on the Regular
Certificates. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling and Servicing Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents to
the terms, provisions and conditions of the Pooling and Servicing Agreement and
is bound thereby. Also issued under the Pooling and Servicing Agreement are the
Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class A-5, Class PS-1,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-6H,
Class V-1, Class V-2 and Class R Certificates (together with the Class LR
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the terms
of a Pooling and Servicing Agreement dated as of September 11, 1998 (the
"Pooling and Servicing Agreement"), by and among CAPCO America Securitization
Corporation, as Depositor, The Capital Company of America Client Services LLC,
as Servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(2) and 860D of the Code.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any Certificate)
will be made by the Paying Agent to the persons in whose names the Certificates
are registered at the close of business on each Record Date, which will be the
tenth day of the month in which the related Distribution Date occurs or, if such
day is not a Business Day, the preceding Business Day. Such distributions shall
be made on each Distribution Date other than the Termination Date to each
Certificateholder of record on the related Record Date by check mailed by first
class mail to the address set forth therefor in the Certificate Register or,
provided that such Certificateholder shall have provided the Paying Agent with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity located in the United States
and having appropriate facilities therefor. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee or its agent (which
may be the Paying Agent or the Certificate Registrar acting as such agent)
maintained in the Borough of Manhattan that is specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the Termination Date because of failure of
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the non-tendering Certificateholders, whereupon the
Trust Fund shall terminate. If any Certificates as to which notice of the
Termination Date has been given pursuant to Section 9.01 of the Pooling and
Servicing Agreement 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor Trustee or (ii) the termination of
the Trust Fund and distribution of such amounts to the Class R
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 9.01 of the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and subject to certain
conditions as specified in the Pooling and Servicing Agreement.
This Certificate is limited in right of payment to, among other things,
certain collections and recoveries in respect of the Mortgage Loans, as more
specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund includes
(i) such Mortgage Loans as from time to time are subject to the Pooling and
Servicing Agreement, together with the Mortgage Files relating thereto; (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date; (iii) any REO Property; (iv) all revenues
received in respect of any REO Property; (v) the Servicer's, the Co-Servicer's,
the Special Servicer's and the Trustee's rights under the insurance policies
with respect to the Mortgage Loans required to be maintained pursuant to the
Pooling and Servicing Agreement and any proceeds thereof; (vi) any Assignments
of Leases, Rents and Profits and any security agreements; (vii) any indemnities
or guaranties given as additional security for any Mortgage Loans; (viii) all
assets deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts (to the extent such assets in such accounts are
not assets of the respective Borrowers), the Collection Account, the
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Pre-Lock Out Return of Premium Distribution Account,
the Post-Lock Out Return of Premium Distribution Account, the Interest Reserve
Account and the Default Interest Distribution Account, including reinvestment
income; (ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) the rights and remedies under the Mortgage Loan Purchase and
Sale Agreements and Bloomfield Purchase Agreement; and (xi) the proceeds of any
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Borrower). As provided in the
Pooling and Servicing Agreement, withdrawals may be made from certain of the
above-accounts for purposes other than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement, and reference is made to the Pooling and Servicing Agreement for the
interests, rights, benefits, obligations and duties evidenced hereby, and the
limitations thereon, and the rights, duties and immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations set forth therein, this Certificate is transferable or exchangeable
only upon surrender of this Certificate to the Certificate Registrar at the
Corporate Trust Office together with an assignment and transfer (executed by the
Holder or his duly authorized attorney), subject to the requirements in Article
V of the Pooling and Servicing Agreement. Upon surrender for registration of
transfer of this Certificate, subject to the requirements of Article V of the
Pooling and Servicing Agreement, the Trustee shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Section 5.02(e) of
the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of transfer,
the Depositor, the Servicer, the Co-Servicer, the Trustee, the Fiscal Agent, the
Certificate Registrar, any Paying Agent and any agent of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicer, the Co-Servicer, the
Trustee, the Fiscal Agent, the Certificate Registrar, any Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
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 Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) of that
Agreement. In connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. 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.
The Pooling and Servicing Agreement or any Custodial Agreement may be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, without the consent of any
of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions therein that may be defective or inconsistent with any
other provisions in such agreements, (iii) to amend any provision hereof to the
extent necessary or desirable to maintain the rating or ratings assigned to each
of the Classes of Regular Certificates by each Rating Agency, (iv) to amend or
supplement any provisions in such agreements that shall not adversely affect in
any material respect the interests of any Certificateholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel, at the expense of the
party requesting such amendment or confirmation in writing from each Rating
Agency that such amendment or supplement will not result in a qualification,
withdrawal or downgrading of the then-current ratings assigned to the
Certificates, or (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement, which shall not be
inconsistent with the provisions of the Pooling and Servicing Agreement and will
not result in a downgrade, qualification or withdrawal of the then-current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
The Pooling and Servicing Agreement or any Custodial Agreement may also be
amended from time to time by the Depositor, the Servicer, the Co-Servicer, the
Special Servicer, the Trustee and the Fiscal Agent with the consent of the
Holders of each of the Classes of Regular Certificates representing not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
by the amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Certificateholders;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the Holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under the
Pooling and Servicing Agreement, without the consent of the Holders of
all Certificates representing all of the Percentage Interests of the
Class or Classes affected hereby;
(iii)alter the Servicing Standard set forth in the Pooling and Servicing
Agreement or the obligations of the Servicer, the Co-Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which relates
to the amendment of the Pooling and Servicing Agreement without the
consent of all the Holders of all Certificates representing all
Percentage Interests of the Class or Classes affected thereby.
Further, the Depositor, the Servicer, the Co-Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, at any time and from time to time,
without the consent of the Certificateholders, may amend the Pooling and
Servicing Agreement to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust REMIC as
two separate REMICs, or to prevent the imposition of any additional material
state or local taxes, at all times that any Certificates are outstanding;
provided, however, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder.
The Depositor, and if the Depositor does not exercise the option, the
Servicer and, if neither the Servicer nor the Depositor exercises the option,
the Holders of the Class LR Certificates representing greater than a 50%
Percentage Interest in such Class and, if such Holders of the Class LR
Certificates fail to exercise such option, the Special Servicer may effect an
early termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee and Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, on any Distribution Date on which
the aggregate Stated Principal Balance of the Mortgage Loans remaining in the
Trust Fund is less than 1% of the Initial Pool Balance, by purchasing on such
date all, but not less than all, of the Mortgage Loans and REO Property then
included in the Trust Fund, and all property acquired in respect of any Mortgage
Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the outstanding principal balance of each Mortgage
Loan included in the Trust Fund as of the last day of the
month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(B) the fair market value of all other property included in the
Trust Fund as of the last day of the month preceding such
Distribution Date, as determined by an Independent appraiser
acceptable to the Servicer as of the date not more than 30
days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on such principal balance of
each such Mortgage Loan (including for this purpose any
Mortgage Loan as to which title to the related Mortgaged
Property has been acquired) at the Mortgage Rate (plus the
Excess Rate, to the extent applicable) to the last day of
the month preceding such Distribution Date (less any P&I
Advances previously made on account of principal);
(D) the aggregate amount of unreimbursed Advances, with interest
thereon and unpaid Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans and all REO
Property in the Trust Fund, on the last day of the month
preceding such Distribution Date, as determined by an Independent
appraiser acceptable to the Servicer, together with one month's
interest thereon at the Mortgage Rate.
All costs and expenses incurred by any and all parties to the Pooling and
Servicing Agreement or by the Trust Fund pursuant to Section 9.01(c) of the
Pooling and Servicing Agreement shall be borne by the party exercising its
purchase rights thereunder. The Trustee shall be entitled to rely conclusively
on any determination made by an Independent appraiser pursuant to Section
9.01(c) of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement shall
terminate upon the earliest to occur of (i) the repurchase of the Mortgage Loans
by the Depositor, the Servicer or the Holder of the Class LR Certificates as
described above; or (ii) the later of (a) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund, or (b) the
liquidation and disposition pursuant to the Pooling and Servicing Agreement of
the last asset held by the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has been
executed by the Trustee or on its behalf by the Authenticating Agent, by manual
signature, this Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate to be
duly executed.
Dated:
LASALLE NATIONAL BANK, 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 Pooling and
Servicing Agreement.
Dated:
LASALLE NATIONAL BANK, not in its individual
capacity but solely as Authenticating Agent
By:
------------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto -------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Class LR Certificate and hereby authorize(s) the registration of
transfer of such interest to Assignee(s) on the Certificate Register of the
Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Class LR
Certificate of the entire Percentage Interest represented by the within Class LR
Certificates to the above-named Assignee(s) and to deliver such Class LR
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date:
------------ ------------------------------------
Signature by or on behalf of
Assignor(s)
------------------------------------
Taxpayer Identification Number
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions:------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Distributions, if be made by wire transfer in immediately available funds to
- --------------------------------------------------------------------------------
for the account of -------------------------------------------------------------
account number ----------------------------------.
This information is provided by ------------------------------------------------
the Assignee(s) named above, or ------------------------------------------------
as its (their) agent.
By:
------------------------------------------
------------------------------------------
[Please print or type name(s)]
------------------------------------------
Title
------------------------------------------
Taxpayer Identification Number
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Mortgage Loan Schedule
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
Prime Retail III
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
4743 -52294096 Lighthouse Place 601 Wabash Street Michigan City IN
4743 -52294094 Finger Lakes Outlet Center 655 Route 318 Waterloo NY
4743 -52293754 Outlets at Gilroy III and IV 681 Leaversly Road, Suite 175 Gilroy CA
4743 -52294097 Outlets at Gilroy I, II and V 681 Leaversly Road, Suite 175 Gilroy CA
4743 -52294095 Kittery Outlet Village 294 U.S. Route 1 Kittery ME
- ------------------------------------------------------------------------------------------------------------------------------------
-5066784 -52293667 Soho Grand Hotel 310 West Broadway New York NY
Morgantown Mall and Commons
- ------------------------------------------------------------------------------------------------------------------------------------
2146051587 2110498482 Morgantown Mall 9500 Mall Road Morgantown WV
2146051587 2110498483 Morgantown Commons 9500 Mall Road Morgantown WV
- ------------------------------------------------------------------------------------------------------------------------------------
-5066775 -52293622 5670 Wilshire Building 5670 Wilshire Los Angeles CA
Shidler Industrial Portfolio
- ------------------------------------------------------------------------------------------------------------------------------------
-5066205 -52293451 4150-4174 Bandini Boulevard 4150-4174 Bandini Boulevard Vernon CA
-5066205 -52293442 Wicks Business Park Wicks Business Park San Leandro CA
-5066205 -52293448 341-345 Baldwin Park 341-345 Baldwin Park Industry CA
-5066205 -52293445 Nelson & Stafford, Industry Nelson & Stafford, Industry Industry CA
-5066205 -52293447 730-780 Baldwin Park 730-780 Baldwin Park Industry CA
-5066205 -52293450 2800-2900 Sierra Pine 2800-2900 Sierra Pine Vernon CA
-5066205 -52293449 13240, 13280 Amar Road 13240, 13280 Amar Road Industry CA
-5066205 -52293444 Chapman & Western Chapman & Western Garden Grove CA
-5066205 -52293443 15551 Red Hill Avenue 15551 Red Hill Avenue Tustin CA
-5066205 -52293453 1900 Tubeway 1900 Tubeway Commerce CA
-5066205 -52293455 3707 S. Hill Street 3703 S. Hill Street Los Angeles CA
-5066205 -52293454 2001-2015 Saybrook 2001-2015 Saybrook Commerce CA
-5066205 -52293440 2229-2235 E. Magnolia 2229-2235 E. Magnolia Phoenix AZ
-5066205 -52293446 111 N. Hudson Avenue 111 N. Hudson Avenue Industry CA
-5066205 -52293441 1444-1446 Factor Ave. 1444-1446 Factor Ave. San Leandro CA
-5066205 -52293452 2600 Yates 2600 Yates Commerce CA
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$5,991,377.76 8.400% 6.50%
- --------------------------------------------------------------------------------
$ 18,739,396 NACC TRUE
$ 15,092,940 NACC TRUE
$ 14,765,676 NACC TRUE
$ 12,391,889 NACC TRUE
$ 4,495,913 NACC TRUE
- --------------------------------------------------------------------------------
$ 65,485,816
$4,641,335.52 8.500% 6.50% $ 48,033,402 NACC TRUE
$3,685,468.56 6.890% 4.05%
- --------------------------------------------------------------------------------
$ 35,200,000 NACC TRUE
$ 11,480,000 NACC TRUE
- --------------------------------------------------------------------------------
$ 46,680,000
$5,022,324.00 8.500% 6.55% $ 54,431,011 NACC TRUE
$4,263,153.96 7.750% 5.00%
- --------------------------------------------------------------------------------
$ 8,046,543 NACC TRUE
$ 5,894,561 NACC TRUE
$ 5,146,045 NACC TRUE
$ 5,941,343 NACC TRUE
$ 5,520,303 NACC TRUE
$ 3,274,756 NACC TRUE
$ 2,713,369 NACC TRUE
$ 2,573,023 NACC TRUE
$ 2,432,676 NACC TRUE
$ 1,590,596 NACC TRUE
$ 1,309,902 NACC TRUE
$ 1,403,467 NACC TRUE
$ 1,029,209 NACC TRUE
$ 1,029,209 NACC TRUE
$ 842,080 NACC TRUE
$ 842,080 NACC TRUE
- --------------------------------------------------------------------------------
$ 49,589,163
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-5066346 -52293585 Eastland Mall 5471 Central Avenue Charlotte NC
-5066332 -52293616 Airport Industrial 3375 Koapaka Street Honolulu HI
Banyan Pool I
- ------------------------------------------------------------------------------------------------------------------------------------
539724536 -1091115961 Colonial Penn Insurance 4002 N. Eisenhower Blvd. Tampa FL
539724536 1363012220 Phoenix Business Center 2700 Northeast Expressway Atlanta GA
539724536 1210426400 Sand Lake Center 2407 Sand Lake Road Orlando FL
539724536 -401434207 Avalon Center 3145 Avalon Ridge Plaza Norcross GA
539724536 462266317 Peachtree Point 3200-3280 Peachtree Ind. Blvd. Norcross GA
539724536 -944290550 Southlake Corporate Center 3000 Corporate Center Drive Morrow GA
539724536 -84838626 Newtown Business Center 804,805, 808 &1051 Newtown Lexington KY
539724536 981850367 University CC III 6953 University Blvd. Orlando FL
539724536 1001990582 University CC II 6903 University Blvd. Orlando FL
539724536 -1446077880 Airways Plaza 3033-3063 Airways Blvd Memphis TN
539724536 1404968643 Technology Center 4955 Corporate Drive Huntsville AL
539724536 345214715 Park Center 2430 Sand Lake Road Orlando FL
539724536 255606484 University CC IV 7071 University Blvd. Orlando FL
539724536 2027688226 Atrium 2345 Sand Lake Road Orlando FL
539724536 -1578250583 University CC 1 7103 University Blvd. Orlando FL
539724536 1594458949 Metric Plaza 4208-4214 Metric Drive Orlando FL
- ------------------------------------------------------------------------------------------------------------------------------------
Land Apartments
- ------------------------------------------------------------------------------------------------------------------------------------
2423 4058 Eastland Apartments 4243 Forest Creek Court Kentwood MI
2423 4055 Crown Point Apartments 11800 Matt Urban Drive Holland MI
2423 4059 Prairie Creek 1905 Prairie Parkway Wyoming MI
- ------------------------------------------------------------------------------------------------------------------------------------
Burgandy Properties
- ------------------------------------------------------------------------------------------------------------------------------------
4744 1127612812 Mill Pond West 11701 W. River Hills Dr. Burnsville MN
4744 -52293731 Mill Pond East 2100 East Cliff Road Burnsville MN
4744 -52293732 Pebblebrook 1 4101 W. 98th St. Bloomington MN
4744 -52294243 Beach South 4201-46 Avenue North Robbinsdale MN
4744 -574467689 Pebblebrook II 9901 Harrison Rd Bloomington MN
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$4,306,520.64 8.500% 7.35% $ 46,673,225 NACC TRUE
$3,418,029.00 7.070% 6.95% $ 39,500,000 NACC TRUE
$3,176,737.56 8.380% 5.00%
- --------------------------------------------------------------------------------
$ 5,057,243 NACC TRUE
$ 3,890,305 NACC TRUE
$ 3,517,267 NACC TRUE
$ 3,180,546 NACC TRUE
$ 3,083,415 NACC TRUE
$ 2,860,037 NACC TRUE
$ 2,753,925 NACC TRUE
$ 1,879,673 NACC TRUE
$ 1,782,084 NACC TRUE
$ 1,738,775 NACC TRUE
$ 1,345,984 NACC TRUE
$ 1,266,565 NACC TRUE
$ 813,429 NACC TRUE
$ 790,395 NACC TRUE
$ 436,780 NACC TRUE
$ 366,869 NACC TRUE
- --------------------------------------------------------------------------------
$ 34,763,291
$2,296,842.36 7.790% 6.30%
- --------------------------------------------------------------------------------
$ 14,796,698 NACC TRUE
$ 6,852,162 NACC TRUE
$ 4,965,335 NACC TRUE
- --------------------------------------------------------------------------------
$ 26,614,195
$1,562,577.00 8.000% 6.50%
- --------------------------------------------------------------------------------
$ 4,483,259 NACC TRUE
$ 3,976,975 NACC TRUE
$ 3,126,421 NACC TRUE
$ 3,106,054 NACC TRUE
$ 3,017,231 NACC TRUE
$ 17,709,939
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1156 2110498461 One Park Plaza 3250 Wilshire Blvd. Los Angeles CA
892847214 -52294017 Beckman Instruments - Brea 200 and 250 S. Kraimer Blvd. Brea CA
4252 6925 Sun Life RV Resort 5055 East University Drive Mesa AZ
895164076 -52293720 1400 Union Meeting Road 1400 Union Meeting Road Blue Bell PA
4763 893260669 Cliffs of Dunwoody 7275 Rosswell Road Atlanta GA
-5066946 -52294033 6400 Shafer Court 6400 Shafer Court Rosemont IL
-616723201 -52293829 Walzem Plaza S/C 5332-5400 East Walzem Road San Antonio TX
- -1990447397 -52294016 Beckman - Miami 11800 SW 147th Ave. Miami FL
890766338 739089772 Money Store Headquarters 707 Third Street West Sacramento CA
Greenwich Portfolio
- ------------------------------------------------------------------------------------------------------------------------------------
-5066952 -52293698 45 E.Putnam 45 E. Putnam Ave. Greenwich CT
-5066952 -52293696 340-350 Greenwich Ave. 340-350 Greenwich Ave. Greenwich CT
-5066952 -52293697 116-136 E. Putnam 116-136 E. Putnam Ave. Greenwich CT
- ------------------------------------------------------------------------------------------------------------------------------------
894471076 -52293855 Monte Sano Apts. 125 Ridgegate Place Huntsville AL
-5066888 -52293955 Pointe West 3033-3077 Kettering Blvd Dayton OH
Accor-M-Six V
- ------------------------------------------------------------------------------------------------------------------------------------
2107835313 -52294144 696 1530 N. 52Nd Dr. Phoenix AZ
2107835313 -52294141 1007 2081 N. First Street San Jose CA
2107835313 -52294146 639 1257 De La Torre Blvd Salinas CA
2107835313 -52294145 689 660 South Palm Canyon Dr Palm Springs CA
2107835313 -52294143 741 6015 Iliff Rd Northwest Albuquerque NM
2107835313 -52294136 1257 2155 Hanford Road Burlington NC
2107835313 -52294180 1117 7233 Davidson Parkway Stockbridge GA
2107835313 -52294139 1067 4800 Gateway East El Paso TX
2107835313 -52294138 1140 16884 Northwest Freeway Houston TX
2107835313 -52294140 1010 820 W. Sepulveda Blvd Harbor City CA
2107835313 -52294137 1160 2440 E. Lucky Lane Flagstaff AZ
- ------------------------------------------------------------------------------------------------------------------------------------
Accor-M-Six III
- ------------------------------------------------------------------------------------------------------------------------------------
- -2053351219 -52294215 103 2560 Fontaine Road San Jose CA
- -2053351219 -52294211 251 7450 Katella Avenue Stanton CA
- -2053351219 -52294213 171 1600 S University Dr Provo UT
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$1,306,729.80 6.820% 6.72% $ 16,000,000 NACC TRUE
$2,203,449.36 7.540% 0.00% $ 15,441,913 NACC FALSE
$1,270,109.76 7.260% 5.00% $ 15,410,802 Bloomfield TRUE
$1,373,496.48 8.500% 5.00% $ 14,865,488 NACC TRUE
$1,209,382.56 7.800% 6.40% $ 13,976,544 NACC TRUE
$1,205,607.48 8.500% 6.50% $ 13,048,409 NACC TRUE
$1,011,274.68 7.180% 5.00% $ 12,425,236 NACC TRUE
$1,740,324.24 7.540% 0.00% $ 12,196,303 NACC FALSE
7.250% 0.00% $ 12,169,935 NACC FALSE
$1,070,353.92 8.430% 5.00%
- --------------------------------------------------------------------------------
$ 5,180,304 NACC TRUE
$ 4,044,959 NACC TRUE
$ 2,363,471 NACC TRUE
- --------------------------------------------------------------------------------
$ 11,588,734
$ 985,731.60 8.000% 5.00% $ 11,184,830 NACC TRUE
$ 996,871.92 8.500% 6.50% $ 10,803,901 NACC TRUE
$1,234,240.92 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 1,508,536 NACC FALSE
$ 1,361,873 NACC FALSE
$ 1,068,547 NACC FALSE
$ 1,068,547 NACC FALSE
$ 1,026,643 NACC FALSE
$ 900,931 NACC FALSE
$ 796,172 NACC FALSE
$ 754,268 NACC FALSE
$ 733,316 NACC FALSE
$ 586,653 NACC FALSE
$ 481,894 NACC FALSE
- --------------------------------------------------------------------------------
$ 10,287,380
$1,212,205.68 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 2,356,890 NACC FALSE
$ 1,178,445 NACC FALSE
$ 1,023,895 NACC FALSE
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-2053351219 -52294208 1111 7219 Engle Road Middleburg Heights OH
-2053351219 -52294207 1143 4950 S. Outlet Center Drive Tucson AZ
-2053351219 -52294188 334 1321 I H 35 North San Marcos TX
-2053351219 -52294206 1150 5353 Midland Billings MT
-2053351219 -52294209 1109 32700 Barrington Road Madison Heights MI
-2053351219 -52294210 282 1505 E. Santa Fe Avenue Grants NM
-2053351219 -52294212 231 845 Lantana Street Corpus Christi TX
-2053351219 -52294214 121 3810 Patterson Ave Winston Salem NC
- --------------------------------------------------------------------------------------------------------------
141306765 -52293980 1129 State Street 1109 - 1137 State Street Santa Barbara CA
Accor-M-Six VI
- --------------------------------------------------------------------------------------------------------------
1652039 -52294135 15 176 W Sixth South St Salt Lake City UT
1652039 -52294131 471 750 Raintree Drive Carlsbad CA
1652039 -52294132 346 4200 Via Real Carpinteria CA
1652039 -52294126 1137 13100 Goldenwest Westminster CA
1652039 -52294128 1005 7850 College Town Drive Sacramento CA
1652039 -52294130 560 2753 Forest Lane Dallas TX
1652039 -52294129 620 436 W. I-30 & Beltline Garland TX
1652039 -52294122 1265 7501 Interstate 30 Little Rock AR
1652039 -52294134 128 3430 St Vardell Lane Charlotte NC
1652039 -52294123 1198 3120 Kultgen Freeway Waco TX
1652039 -52294127 1094 3950 Parkway Lane Hilliard OH
1652039 -52294124 1188 4621 E. Rittiman Rd. San Antonio TX
1652039 -52294133 292 407 West Palmdale Blvd Palmdale CA
1652039 -52294125 1182 12121 N.E. Expressway Oklahoma City OK
- --------------------------------------------------------------------------------------------------------------
Accor-M-Six Penvest II
- --------------------------------------------------------------------------------------------------------------
894297785 -52294161 142 5310 San Bernardo Ave Laredo TX
894297785 -52294154 651 2185 S.W. Loop 410 San Antonio TX
894297785 -52294149 1131 330 Goff Mountain Road Crosslanes WV
894297785 -52294155 522 704 N. Leavitt Amherst OH
894297785 -52294153 1047 900 N. Quince Street Escondido CA
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 927,301 NACC FALSE
$ 830,707 NACC FALSE
$ 753,432 NACC FALSE
$ 714,794 NACC FALSE
$ 637,519 NACC FALSE
$ 579,563 NACC FALSE
$ 560,244 NACC FALSE
$ 540,926 NACC FALSE
- --------------------------------------------------------------------------------
$10,103,716
$ 911,737.44 8.500% 6.70% $ 9,867,824 NACC TRUE
$1,183,151.40 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 1,359,012 NACC FALSE
$ 1,149,933 NACC FALSE
$ 1,010,547 NACC FALSE
$ 871,161 NACC FALSE
$ 784,045 NACC FALSE
$ 679,506 NACC FALSE
$ 644,660 NACC FALSE
$ 592,390 NACC FALSE
$ 592,390 NACC FALSE
$ 540,120 NACC FALSE
$ 453,004 NACC FALSE
$ 435,581 NACC FALSE
$ 400,734 NACC FALSE
$ 348,465 NACC FALSE
- --------------------------------------------------------------------------------
$ 9,861,548
$1,171,669.80 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 952,278 NACC FALSE
$ 971,323 NACC FALSE
$ 742,777 NACC FALSE
$ 742,777 NACC FALSE
$ 704,686 NACC FALSE
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
894297785 -52294150 1120 5555 West 34Th Street Houston TX
894297785 -52294159 166 1111 East Sheldon St Prescott AZ
894297785 -52294157 458 546 Mcarthur Dr Alexandria LA
894297785 -52294148 1214 5120 Hinkleville Road Paducah KY
894297785 -52294151 1110 8300 Chicago Road Warren MI
894297785 -52294152 1092 3960 Nine Mile Rd. Cincinnati OH
894297785 -52294147 1262 63950 20Th Avenue North Palm Springs CA
894297785 -52294156 484 1405 Dunn Rd. St. Louis MO
894297785 -52294160 146 2749 S Carson St Carson City NV
894297785 -52294158 351 9400 El Camino Real Atascadero CA
894297785 -52294162 4 298 Atascadero Rd Morro Bay CA
- ------------------------------------------------------------------------------------------------------------------------------------
894473137 -52293842 Wasilla Retail Center 591,595,695 Parks Hwy. Wasilla AK
Accor-M-Six IV
- ------------------------------------------------------------------------------------------------------------------------------------
- -1120960573 -52294201 263 3208 El Camino Real Santa Clara CA
- -1120960573 -52294195 1127 4630 W. Ina Road Tucson AZ
- -1120960573 -52294204 122 2626 East Randol Mill Rd Arlington TX
- -1120960573 -52294194 1132 1860 Bowles Avenue Fenton MO
- -1120960573 -52294197 1036 502 W. Arrow Highway San Dimas CA
- -1120960573 -52294199 426 1000 Shiloh Lane Bessemer AL
- -1120960573 -52294192 1250 1834 W. Lucas Street Florence SC
- -1120960573 -52294202 225 3716 Houston Highway Victoria TX
- -1120960573 -52294196 1088 830 Royal Drive Jackson MI
- -1120960573 -52294193 1237 4013 Padre Boulevard South Padre Island TX
- -1120960573 -52294203 172 201 S Thornton Drive Albany GA
- -1120960573 -52294200 377 1417 N Moore Ave Moore OK
- -1120960573 -52294198 440 I-95 & U.S. Hwy.17 Richmond Hill GA
- ------------------------------------------------------------------------------------------------------------------------------------
4669 -118277834 Holiday Inn Sunspree Padre Is 100 Padre Blvd. Padre Island TX
Accor-M-Six Creditvest I
- ------------------------------------------------------------------------------------------------------------------------------------
894305553 -52294237 688 1310 W Lantana Road Lantana FL
894305553 -52294241 1052 17220 Downey Avenue Bellflower CA
894305553 -52294235 381 9725 Lenexa Dr Lenexa KS
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 666,594 NACC FALSE
$ 628,503 NACC FALSE
$ 609,458 NACC FALSE
$ 571,367 NACC FALSE
$ 533,276 NACC FALSE
$ 476,139 NACC FALSE
$ 476,139 NACC FALSE
$ 457,093 NACC FALSE
$ 438,048 NACC FALSE
$ 438,048 NACC FALSE
$ 419,002 NACC FALSE
- --------------------------------------------------------------------------------
$ 9,827,506
$ 866,245.80 8.080% 5.00% $ 9,765,179 NACC TRUE
$1,169,646.48 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 1,685,762 NACC FALSE
$ 1,218,623 NACC FALSE
$ 1,015,519 NACC FALSE
$ 934,278 NACC FALSE
$ 853,036 NACC FALSE
$ 629,622 NACC FALSE
$ 609,312 NACC FALSE
$ 609,312 NACC FALSE
$ 568,691 NACC FALSE
$ 426,518 NACC FALSE
$ 406,208 NACC FALSE
$ 406,208 NACC FALSE
$ 385,897 NACC FALSE
- --------------------------------------------------------------------------------
$ 9,748,985
$1,022,838.84 9.500% 5.00% $ 9,722,992 NACC TRUE
$1,158,589.92 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 1,069,147 NACC FALSE
$ 954,596 NACC FALSE
$ 916,412 NACC FALSE
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
894305553 -52294240 679 3708 Plaza Drive Oceanside CA
894305553 -52294236 1183 7827 N.Davis Highway Pensacola FL
894305553 -52294233 107 3524-28Th S E Grand Rapids MI
894305553 -52294227 183 138 North W W White Road San Antonio TX
894305553 -52294228 422 300 I-20 E. Marshall TX
894305553 -52294239 1207 2500 Peters Road Ft. Pierce FL
894305553 -52294232 1278 1911 Julian R.Allsbrook Hwy Roanoke Rapids NC
894305553 -52294231 1135 6880 Sunset Strip Ave.,Nw North Canton OH
894305553 -52294238 417 10885 Harts Rd Jacksonville FL
894305553 -52294230 1091 3850 Hauck Rd Sharonville OH
894305553 -52294234 205 4585 Frederica St Owensboro KY
894305553 -52294229 794 5335 Hearterdowns Blvd Toledo OH
- ------------------------------------------------------------------------------------------------------------------------------------
Accor-M-Six Limited Partnership
- ------------------------------------------------------------------------------------------------------------------------------------
306953301 -52294181 1078 65 Newbury Street Danvers MA
306953301 -52294205 1268 10 Roosevelt Road Villa Park IL
306953301 -52294184 775 6330 Debonair Lane Speedway IN
306953301 -52294185 739 2400 Biddle Rd Medford OR
306953301 -52294183 1040 1535 Milwaukee Ave Glenview IL
306953301 -52294189 253 1800 North East Seventh Grants Pass OR
306953301 -52294190 245 52624 Us Hwy 31 N South Bend IN
306953301 -52294186 700 7707 Lee Hwy Chattanooga TN
306953301 -52294182 1059 88 Burnett Road Chicopee MA
306953301 -52294179 1254 8290 Louisiana Street Merrillville IN
306953301 -52294178 1283 1283 Motel 6 Drive Washington PA
306953301 -52294191 156 95 Wallace Rd Nashville TN
306953301 -52294187 699 323 Cartwright Rd Goodlettsville TN
306953301 -52294142 784 1800 Winnetka Circle Rolling Meadows IL
- ------------------------------------------------------------------------------------------------------------------------------------
Accor-M-Six Creditvest II
- ------------------------------------------------------------------------------------------------------------------------------------
-1450053745 -52294216 1267 43 Industrial Highway Essington PA
-1450053745 -52294221 476 496 N. Catalpa Midvale UT
-1450053745 -52294223 376 825 E Dania Beach Blvd Dania FL
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 916,412 NACC FALSE
$ 859,136 NACC FALSE
$ 610,941 NACC FALSE
$ 553,666 NACC FALSE
$ 553,666 NACC FALSE
$ 515,482 NACC FALSE
$ 515,482 NACC FALSE
$ 496,390 NACC FALSE
$ 496,390 NACC FALSE
$ 458,206 NACC FALSE
$ 400,930 NACC FALSE
$ 400,930 NACC FALSE
- --------------------------------------------------------------------------------
$ 9,717,785
$1,156,105.68 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 1,235,400 NACC FALSE
$ 935,375 NACC FALSE
$ 917,726 NACC FALSE
$ 900,077 NACC FALSE
$ 847,132 NACC FALSE
$ 794,186 NACC FALSE
$ 635,349 NACC FALSE
$ 547,106 NACC FALSE
$ 529,457 NACC FALSE
$ 494,160 NACC FALSE
$ 476,512 NACC FALSE
$ 458,863 NACC FALSE
$ 441,214 NACC FALSE
$ 423,566 NACC FALSE
- --------------------------------------------------------------------------------
$ 9,636,123
$1,143,203.64 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 1,604,269 NACC FALSE
$ 1,364,550 NACC FALSE
$ 1,253,911 NACC FALSE
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-1450053745 -52294225 345 9638 Plainfield Rd. Houston TX
-1450053745 -52294222 402 3021 Idaho St Elko NV
-1450053745 -52294217 1142 2260 Elkhorn Road Lexington KY
-1450053745 -52294224 371 1201 N.W. 31St Ave Pompano Beach FL
-1450053745 -52294226 133 6001 Rogers Ave Fort Smith AR
-1450053745 -52294219 1035 1473 Holiday Lane Fairfield CA
-1450053745 -52294220 542 202 Grace Streeet Oxford AL
-1450053745 -52294218 1130 202 Jellison Blvd. Duncanville TX
- ------------------------------------------------------------------------------------------------------------------------------------
892129713 893165407 Rancho San Marcos Village 621-695 Rancho Santa Fe Road San Marcos CA
Accor-M-Six Penvest I
- ------------------------------------------------------------------------------------------------------------------------------------
-5067125 -52294175 294 12733 So Hwy 33 Santa Nella CA
-5067125 -52294169 743 41900 Moreno Dr. Temecula CA
-5067125 -52294166 1108 38300 Grand River Ave. Farmington Hills MI
-5067125 -52294165 1136 8911 State Hwy. 146 Baytown TX
-5067125 -52294173 385 820 I-45 South Conroe TX
-5067125 -52294172 406 2800 I-10 Frontage Rd Port Allen LA
-5067125 -52294170 586 1800 Harding Hwy Lima OH
-5067125 -52294174 339 1607 Interstate 45 Huntville TX
-5067125 -52294164 1200 105 Jones Road Spartanburg SC
-5067125 -52294176 290 1540 Hwy 93 South Kalispell MT
-5067125 -52294171 554 1289 E. Dubin-Granville Columbus OH
-5067125 -52294167 1069 2324 Austin Parkway Flint MI
-5067125 -52294177 158 110 West Access Road Longview TX
-5067125 -52294168 1009 1560 East Fourth Street Ontario CA
-5067125 -52294163 1264 1716 Fayetteville Road Van Buren AR
- ------------------------------------------------------------------------------------------------------------------------------------
890842802 -466627043 Palm Desert Country Club S.C 42329 Washington St. Palm Desert CA
1735 3606 New City Plaza Route 304 & Main Street New City NY
Cinemark Pool B
- ------------------------------------------------------------------------------------------------------------------------------------
4626 7241 Colorado Springs, CO -
Tinseltown 1545 E. Cheyenne Mountain Colorado Springs CO
4626 7236 Mishawaka - Movies 10 910 W. Edison Mishawaka IN
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 1,014,193 NACC FALSE
$ 958,873 NACC FALSE
$ 682,275 NACC FALSE
$ 645,395 NACC FALSE
$ 553,196 NACC FALSE
$ 534,756 NACC FALSE
$ 516,316 NACC FALSE
$ 460,997 NACC FALSE
- --------------------------------------------------------------------------------
$ 9,588,731
$ 875,740.44 8.500% 6.50% $ 9,491,103 NACC TRUE
$1,126,188.36 7.030% 0.00%
- --------------------------------------------------------------------------------
$ 887,298 NACC FALSE
$ 831,842 NACC FALSE
$ 776,386 NACC FALSE
$ 739,415 NACC FALSE
$ 739,415 NACC FALSE
$ 739,415 NACC FALSE
$ 683,959 NACC FALSE
$ 646,988 NACC FALSE
$ 628,503 NACC FALSE
$ 628,503 NACC FALSE
$ 517,590 NACC FALSE
$ 499,105 NACC FALSE
$ 388,193 NACC FALSE
$ 369,707 NACC FALSE
$ 369,707 NACC FALSE
- --------------------------------------------------------------------------------
$ 9,446,025
$ 859,835.64 8.500% 5.00% $ 9,296,755 NACC TRUE
$ 799,140.72 8.030% 5.00% $ 9,021,361 NACC TRUE
$1,292,837.52 8.049% 0.00%
- --------------------------------------------------------------------------------
$ 5,799,844 NACC FALSE
$ 3,061,034 NACC FALSE
$ 8,860,878
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
4221 6999 Nordhoff Industrial Complex 20500-20680 Chatsworth Dr. Chatsworth CA
890842644 -52294011 Seven Corners Apts. 6122 Willston Drive Falls Church VA
891877519 1975544739 Citibank Office Plaza 1699 E. Woodfield Road Schaumburg IL
4762 -52294098 Savannah Apartments 7201 Hart Lane Austin TX
990400431 701121031 Belleville Manor 8701 Belleville Road Belleville MI
-259051788 -52293747 203 East Fordham Road 203 East Fordham Road Bronx NY
2377 2674 Plantation Club Apartments 201 Plantation Club Drive Melbourne FL
2794 4686 Silver Pointe SC 17015-17325 Silver Parkway Fenton MI
1887 3784 Central Medical Park 2610 N. Duke Street Durham NC
4458 7305 Friendly Village MHP 4377 W. County Line Road Greenwood IN
-5066800 -52293468 Springhill Business Center 1524 Spring Hill Road McLean VA
2146051642 2110498610 Pacific Court Office Building 1411-1413 5th Street Santa Monica CA
Banyan Pool 3
- ------------------------------------------------------------------------------------------------------------------------------------
-5066845 -52293760 Elmhurst 747 Church Road Elmhurst IL
-5066845 -52293704 Milwaukee - Commerce 2485 - 2487 Commerce Road New Berlin WI
-5066845 -52293703 Milwaukee - 160th 2455 - 2925 South 160th Street New Berlin WI
-5066845 -52293702 Milwaukee - Whittaker Way 14518 - 1467 Whittaker Way Menomonee Falls WI
-5066845 -52293705 Milwaukee - Ryerson 15725 - 15793 Ryerson Road New Berlin WI
- ------------------------------------------------------------------------------------------------------------------------------------
-5066960 -52293506 Pride Center 22914-22964 Victory Blvd. Woodland Hills CA
4357 7146 Hidden Harbor 1032 Hidden Harbour Drive Melbourne FL
4665 -52294062 Oshkosh Center II W. 20th & Koeller Oshkosh WI
2499 1105537117 Waterford Plaza 100-10200 6th Avenue North Plymouth MN
2597 4599 Palm Harbor Apartments 2350 Cypress Pond Road Palm Harbor FL
- -1159523246 -52293982 Fiserve Building 912 Fort Duquesne Blvd Pittsburgh PA
Airport Atrium
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
891444343 893088995 Airport Atrium 5007 South Howell Avenue Milwaukee WI
891444343 -801669656 Sampson 1 130-150 Edgerton Avenue Milwaukee WI
891444343 -196535003 Braemar Building 7201 West 78th Street Bloomington MN
- ------------------------------------------------------------------------------------------------------------------------------------
-5066901 -52293954 Wicomico 1601 Wicomico Street Baltimore MD
Seven Mobile Home Properties
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 774,418.68 8.500% 5.00% $ 8,360,541 NACC TRUE
$ 723,006.24 8.000% 5.00% $ 8,198,171 NACC TRUE
$ 741,695.16 8.500% 6.50% $ 8,024,402 NACC TRUE
$ 635,469.96 6.950% 6.35% $ 7,994,922 NACC TRUE
$ 673,219.08 7.530% 5.00% $ 7,981,228 Bloomfield TRUE
$ 734,180.40 8.500% 5.00% $ 7,956,903 NACC TRUE
$ 730,347.12 8.385% 6.40% $ 7,931,989 NACC TRUE
$ 650,269.44 7.500% 5.00% $ 7,703,480 NACC TRUE
$ 673,610.76 8.210% 5.00% $ 7,448,692 NACC TRUE
$ 578,904.48 7.210% 5.00% $ 7,086,000 Bloomfield TRUE
$ 621,218.52 8.025% 5.00% $ 7,038,428 NACC TRUE
$ 545,939.64 6.770% 0.00% $ 7,000,000 NACC TRUE
$ 634,503.36 8.380% 5.00%
- --------------------------------------------------------------------------------
$ 3,462,866 NACC TRUE
$ 1,081,739 NACC TRUE
$ 936,904 NACC TRUE
$ 769,438 NACC TRUE
$ 697,020 NACC TRUE
- --------------------------------------------------------------------------------
$ 6,947,966
$ 590,178.48 7.340% 5.00% $ 6,750,000 NACC TRUE
$ 586,899.48 8.000% 5.00% $ 6,647,206 NACC TRUE
$ 570,423.60 7.210% 5.00% $ 6,578,864 NACC TRUE
$ 606,972.60 8.500% 6.50% $ 6,552,811 NACC TRUE
$ 551,854.56 7.550% 5.00% $ 6,501,098 NACC TRUE
$ 590,880.60 8.500% 6.50% $ 6,395,157 NACC TRUE
$ 590,264.52 8.500% 6.50%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$ 2,901,334 NACC TRUE
$ 2,103,467 NACC TRUE
$ 1,378,133 NACC TRUE
- --------------------------------------------------------------------------------
$ 6,382,934
$ 583,511.64 8.500% 6.60% $ 6,319,292 NACC TRUE
$ 539,029.68 7.340% 5.00%
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
4651 894641325 Woodside MHP Rte 309 and Wolf's Crossing Rd Orefield PA
4651 -1026117981 Natural Springs MHP 66 Natural Springs Road Gettysburg PA
4651 894631331 Mountainview East MHP 201 Rife Road Reading Township PA
4651 -852406748 Progress Ridge MHP NWC 36th & Marshfield Harrisburg PA
4651 -1664032662 Southern Hills MHP Mt. Airy Road Hopewell Township PA
4651 1482449289 Sunshine MHP Route 16 & Pen Mar Rd. Rouzerville PA
4651 -631036760 Castle Hill MHP 2581 Old Harrisburg Road Gettysburg PA
- ------------------------------------------------------------------------------------------------------------------------------------
-5066107 2110498462 SL-Tulsa 4477 S. 7-th East Ave Tulsa OK
-5066848 -52293738 The Courtyard Apts. 14014 Moorpark St. Sherman Oaks CA
891979708 -52293977 Old Metairie Village Shopping 701 Metairie Road Metairie LA
- -1375813444 -52293775 Willowick Industrial Park 1190 Burnett Avenue Concord CA
-5067034 -52293679 Courtney Square Apartments Merry Lane Greenville NC
-5066361 2110498536 Plaza de la Fiesta III & IV 7126-7148 Pacific Blvd. Huntington Park CA
-5066947 -52293991 Motorola Training Center 1 Nelson C. White Parkway Mundelein IL
-5066679 -52293548 Madison Village Hwy 20 & Arlington Drive Madison AL
-5066185 -52293438 Pipestone Plaza 1950 Pipestone Road Benton Harbor MI
-5067097 -52293769 Parkleigh North Apts. 4187 Beechwold Drive Columbus OH
-5066128 -52293425 Southgate Estates MHP 271 Park Office Bloomington IL
890404791 177489888 7 West 45th Street 7 West 45th Street New York NY
- -1307293813 909162363 2100 Swift Drive 2100 Swift Drive Oak Brook IL
894473336 -52293841 Westwind Apts. 2215 Folsom Street Eau Claire WI
4666 -52293733 Stanford Townhouses 26666 Stanford Dr. Southfield MI
4218 7002 Mentor Industrial 8200 Tyler Blvd. Mentor OH
890262910 894470781 Braebuurn Colony Apts. 8917 South Gessner Rd. Houston TX
-5066078 2110498463 SL-Mogadore 3175 Gilchrest Road Mogadore OH
4154 7055 ABFM Industrial Building 10001 S. Howell Ave. Oak Creek WI
4329 7115 1567-1575 Lexington Avenue 1567, 1569, 1571&1575 Lexington Ave. New York NY
1100013805 893686737 Mason Manor MHP 2179 Hull Road Vevay Town MI
894465665 -52293817 118-40 Metropolitan Ave. 118-40 Metropolitan Ave. Kew Gardens NY
890340225 892476675 Clark & Diversey Shopping 613-623 W. Diversey Parkway Chicago IL
894472438 -52293848 Stanbridge Apartments 38 Jenkins Avenue Lansdale PA
4761 1336654586 Village Townhomes 1004 West Cook Street Santa Maria CA
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 1,223,475 NACC TRUE
$ 1,161,804 NACC TRUE
$ 1,099,138 NACC TRUE
$ 1,014,589 NACC TRUE
$ 688,329 NACC TRUE
$ 569,961 NACC TRUE
$ 375,000 NACC TRUE
- --------------------------------------------------------------------------------
$ 6,132,298
$ 491,433.96 7.090% 6.70% $ 6,100,000 NACC TRUE
$ 477,568.08 6.970% 5.00% $ 5,996,214 NACC TRUE
$ 491,166.96 7.250% 5.00% $ 5,993,034 NACC TRUE
$ 536,219.64 8.400% 5.00% $ 5,860,886 NACC TRUE
$ 487,929.60 6.910% 5.00% $ 5,800,000 NACC TRUE
$ 525,585.96 8.441% 5.00% $ 5,727,300 NACC TRUE
$ 523,353.00 8.500% 6.60% $ 5,669,902 NACC TRUE
$ 459,309.00 7.360% 6.75% $ 5,546,899 NACC TRUE
$ 446,214.48 7.160% 5.00% $ 5,496,726 NACC TRUE
$ 429,143.88 6.900% 5.00% $ 5,426,501 NACC TRUE
$ 422,894.40 7.480% 5.00% $ 5,044,555 Bloomfield TRUE
$ 418,492.68 7.270% 5.00% $ 4,984,552 NACC TRUE
$ 438,898.92 8.550% 6.50% $ 4,734,862 NACC TRUE
$ 374,261.16 6.910% 5.00% $ 4,730,000 NACC TRUE
$ 376,367.64 7.030% 5.00% $ 4,694,158 NACC TRUE
$ 415,691.04 7.470% 5.00% $ 4,691,155 NACC TRUE
$ 389,607.00 7.420% 6.65% $ 4,671,280 NACC TRUE
$ 407,725.92 8.160% 6.70% $ 4,561,005 NACC TRUE
$ 417,529.80 8.500% 5.00% $ 4,518,966 NACC TRUE
$ 361,264.08 7.280% 5.00% $ 4,391,362 NACC TRUE
$ 366,062.88 7.530% 5.00% $ 4,339,792 Bloomfield TRUE
$ 344,944.80 6.860% 5.00% $ 4,119,000 NACC TRUE
$ 378,063.84 8.500% 5.00% $ 4,087,720 NACC TRUE
$ 341,400.48 7.070% 5.00% $ 3,991,779 NACC TRUE
$ 320,958.60 7.050% 6.15% $ 3,991,773 NACC TRUE
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
890842962 -1610676713 Ventu Park Shopping Center 579 Ventu Road Thousand Oaks CA
890338516 -52293995 Bowen's Wharf 13 Bowen Wharf. S. Newport RI
Muraco Portfolio
- ------------------------------------------------------------------------------------------------------------------------------------
894471309 -52293695 Lakeview Apts. 212 Old Liverpool Rd. Salina NY
894471309 -52293694 Oneida Apts. 580 Seneca Street Oneida NY
894471309 -52293693 Townsquare Apts. 116 Oswego Street Baldwinsville NY
- ------------------------------------------------------------------------------------------------------------------------------------
1952 3844 Sherman West Apartments 19050 Sherman Way Reseda CA
-853560475 -52293699 Parkside Village Apts. 4991 Parkside Avenue Philadelphia PA
2455 4133 Harbor Greens 1329-51 Figueroa Place Wilmington CA
805075463 -52294099 710 State Street 710 State Street Santa Barbara CA
-5066897 -52293414 Flemings Foods Store 2500 Pennsylvannia Ave Oklahoma City OK
-5067104 -52293774 Playa Vista Plaza 12555 W. Jefferson Blvd. Los Angeles CA
4311 7097 122-126 East 103rd Street 122-126 East 103rd Street New York NY
-5066208 -52293489 Stonewall SC 3101 Clays Mill Road Lexington KY
890344487 -52294113 Tempo Cabana Apts. 2010 Curtis Drive Atlanta GA
4268 6950 Westmont Apts 111 Acklen Park Dr. Nashville TN
4195 -1847027001 Great Western Bank Building 1040 Weston Road Broward County FL
4173 7064 Chelmsford Crossing 199 Chelmsford St. Chelmsford MA
104138058 -52293823 Safeway Industrial 5135 Edison Avenue Chino CA
4718 893267639 The Bentley Mills Building 14641 Don Julian Road City of Industry CA
- -1465703312 -52293765 Twin Pines Healthcare Center 250 March St. Santa Paula CA
1692 3565 Corporate West One 4300 Commerce Court Lisle IL
4207 7013 Ingle West Office Building 1802 Brightseat Rd. Landover MD
891278312 894487637 Colony Ridge Apts. 4373 Glenwood Road Decatur GA
4720 1440038541 SL - Lima 951 Williams Ave. Lima OH
980424583 -52293803 Collins Nursing Home 5511 Baum Blvd. Pittsburgh PA
-456216393 -52293749 Westgrove Towers 4700 Westgrove St. Raleigh NC
2737 7058 Apartments of Westgrove 4929 Faber Drive Raleigh NC
-5067100 -52293772 West Third Street 8 West 3rd Street Winston-Salem NC
1942 3834 Pollyanna Apartments 247 W. Dickson Ave. San Antonio TX
1875 3772 Bellemeade Plaza 605 Lapalco Blvd Gretna LA
4689 -903965307 Hiawassee Oaks Apartments 222 North Hiawassee Road Orlando FL
-5066854 2110498511 Giant Food Store 4596 New Falls Road Levittown PA
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 363,292.44 8.500% 5.00% $ 3,928,007 NACC TRUE
$ 331,287.00 7.060% 5.00% $ 3,872,190 NACC TRUE
$ 331,029.24 7.080% 5.00%
- --------------------------------------------------------------------------------
$ 1,744,041 NACC TRUE
$ 1,214,255 NACC TRUE
$ 908,758 NACC TRUE
- --------------------------------------------------------------------------------
$ 3,867,053
$ 312,310.51 7.290% 5.00% $ 3,795,644 NACC TRUE
$ 295,990.92 7.020% 5.00% $ 3,697,701 NACC TRUE
$ 337,950.36 7.890% 5.00% $ 3,638,747 NACC TRUE
$ 347,807.16 8.900% 6.70% $ 3,630,308 NACC TRUE
$ 296,565.36 7.230% 5.00% $ 3,627,886 NACC TRUE
$ 283,071.96 6.850% 5.00% $ 3,595,277 NACC TRUE
$ 295,579.68 7.280% 5.00% $ 3,592,933 NACC TRUE
$ 281,687.28 7.080% 5.00% $ 3,497,864 NACC TRUE
$ 275,208.84 6.850% 5.00% $ 3,492,419 NACC TRUE
$ 293,399.40 7.030% 7.30% $ 3,412,540 NACC TRUE
$ 298,139.16 7.650% 5.00% $ 3,378,802 NACC TRUE
$ 317,066.28 8.080% 5.00% $ 3,376,291 NACC TRUE
$ 306,411.24 8.400% 5.00% $ 3,349,078 NACC TRUE
$ 379,514.28 7.880% 0.00% $ 3,298,811 NACC FALSE
$ 284,772.48 7.540% 5.00% $ 3,200,000 NACC TRUE
$ 307,415.04 8.510% 5.00% $ 3,131,768 NACC TRUE
$ 286,219.20 8.500% 5.00% $ 3,097,778 NACC TRUE
$ 265,513.68 7.100% 5.00% $ 3,089,134 NACC TRUE
$ 277,086.12 7.590% 6.79% $ 3,087,909 NACC TRUE
$ 277,652.88 7.800% 5.00% $ 3,047,348 NACC TRUE
$ 234,693.12 6.800% 5.00% $ 3,000,000 NACC TRUE
$ 246,316.44 7.280% 5.00% $ 2,992,442 NACC TRUE
$ 258,616.80 7.370% 5.00% $ 2,950,000 NACC TRUE
$ 258,408.12 7.910% 5.00% $ 2,940,339 NACC TRUE
$ 326,355.60 7.510% 5.00% $ 2,804,393 NACC TRUE
$ 227,845.44 7.190% 5.00% $ 2,790,502 NACC TRUE
$ 219,927.36 7.200% 5.00% $ 2,698,413 NACC TRUE
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-5067106 -52293998 Timber Ridge Apts. 5920 Vermellon Drive Ft. Worth TX
Bird Creek Comfort Creek
- ------------------------------------------------------------------------------------------------------------------------------------
- -1760677112 2110498468 Bird Creek Mobile Home Park 1712 North General Bruce Drive Temple TX
- -1760677112 2110498469 Comfort Mobile Home Park 7307 East Riverside Drive Austin TX
- ------------------------------------------------------------------------------------------------------------------------------------
891975979 -328352325 GRW Building 801 Corporate Drive Lexington KY
890336195 -1026751468 University Hills 2700 O'Connor Boulevard Irving TX
1119536309 -52293701 Grove Gate Apartments 2575 SW 27 Avenue Miami FL
891285133 -52293833 Colts Neck Shopping Center State Highway 34 Colts Neck NJ
4452 -52293779 Keosippi Mall US Route 218 KeoKuk IA
569490459 -52293692 Pineville Commerce Center 501-591 North Polk Street Pineville NC
- -1055896988 1283637129 90-92 Thompson Street 90-92 Thompson Street New York NY
-5066776 -52293620 Walton Manor MHP 229 East Walton Blvd. Pontiac MI
4319 7105 238 E. 111th/204 E.112th Street 238 E. 111th/204 E. 112th Street New York NY
891978928 -52293988 Palmwood Terrace Apts. 4917 East Thomas Road Phoenix AZ
1914 3809 Hartnell Plaza 931-969 W. Alisal Street Salinas CA
4451 890660916 Carytown Square 3218-3228 West Cary Street Richmond VA
4600 -412114721 Oak Creek Apts. 1777 North Golfview Essexville MI
890335447 893712508 Hollywood News Building 1545 North Wilcox Ave Los Angeles CA
4650 -1241149803 Chateau Apts. 711 W. Wenger Road Englewood CO
890342664 1174326061 Miller Road Business Ctr. 821-901 Miller Road Garland TX
-5066808 2110498535 The Kellogg Property 70 S. Kellogg Avenue Goleta CA
4581 7277 Maple Lawn III 232-234 E. Maple Dr. Troy MI
890325515 891469515 Stapley-McKellips Center 1239 East McKellips Mesa AZ
890345512 893090161 239 S. La Cienega 239 S. La Cienega Blvd. Beverly Hills CA
4668 40886475 Sunflowers Terrace Apts. 5050 Sunflower Street Houston TX
4686 955295174 Yearling 128-4238 Rickenbacker Ave. Whitehall OH
895157894 -52293810 Briarwyck Apts. 10110 Walnut Street Dallas TX
-5067098 -52293770 H Lazy F MHP 5445 County Rd. 154 Glenwood Springs CO
Bayshore/Rockport Oaks
- ------------------------------------------------------------------------------------------------------------------------------------
-5066130 2110498470 Bayshore Apartments 203 East Ransom Road Aransas Pass TX
-5066130 2110498471 Rockport Oaks Garden Apts 511 East Hackberry Rockport TX
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 233,355.12 7.210% 5.00% $ 2,691,353 NACC TRUE
$ 235,571.64 7.400% 5.00%
- --------------------------------------------------------------------------------
$ 1,696,163 NACC TRUE
$ 983,837 NACC TRUE
- --------------------------------------------------------------------------------
2,680,000
$ 227,155.08 7.610% 5.00% $ 2,591,802 NACC TRUE
$ 206,521.32 7.230% 5.00% $ 2,516,295 NACC TRUE
$ 217,251.48 7.050% 5.00% $ 2,547,376 NACC TRUE
$ 217,422.24 7.280% 5.00% $ 2,497,554 NACC TRUE
$ 238,588.08 8.670% 5.00% $ 2,468,434 NACC TRUE
$ 207,982.92 7.240% 5.00% $ 2,395,247 NACC TRUE
$ 199,798.44 7.420% 5.00% $ 2,394,188 NACC TRUE
$ 196,319.28 6.880% 5.00% $ 2,334,992 Bloomfield TRUE
$ 188,842.56 7.280% 6.80% $ 2,295,485 NACC TRUE
$ 183,867.96 7.100% 5.00% $ 2,275,371 NACC TRUE
$ 196,004.16 7.530% 5.00% $ 2,252,738 NACC TRUE
$ 190,269.24 7.580% 5.00% $ 2,244,796 NACC TRUE
$ 188,787.96 7.500% 5.00% $ 2,242,961 NACC TRUE
$ 200,054.76 7.530% 5.00% $ 2,241,115 NACC TRUE
$ 178,401.72 7.110% 5.00% $ 2,202,349 NACC TRUE
$ 186,714.36 7.290% 5.00% $ 2,136,104 NACC TRUE
$ 166,664.88 7.060% 5.00% $ 2,075,000 NACC TRUE
$ 170,030.88 7.260% 5.00% $ 2,068,087 NACC TRUE
$ 169,809.24 7.320% 5.00% $ 2,053,243 NACC TRUE
$ 178,840.08 7.370% 5.00% $ 2,031,676 NACC TRUE
$ 173,164.56 7.230% 5.00% $ 1,989,165 NACC TRUE
$ 159,402.60 7.210% 5.00% $ 1,948,403 NACC TRUE
$ 158,537.04 6.820% 5.00% $ 1,900,000 NACC TRUE
$ 160,043.88 7.530% 5.00% $ 1,796,658 NACC TRUE
$ 137,324.16 6.830% 5.00%
- --------------------------------------------------------------------------------
$ 923,000 NACC TRUE
$ 827,000 NACC TRUE
- --------------------------------------------------------------------------------
$ 1,750,000
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-5066887 -52293956 Burnhaven 14500 Burnhaven Drive Burnsville MN
2324 4079 Colton Midtown Plaza 1820 East First Street Santa Ana CA
4447 7204 Sax Drugs 22525 Wick Road Taylor MI
892050347 -1559503836 Sea Tac Gardens Apts. 3405 South 176 St Seattle WA
1712 3583 Cherry Point Mall 1300 Egg Harbor Rd. Sturgeon Bay WI
-5066874 -52293792 The Point 1902-66 North Main Street Crown Point IN
4321 7107 311 East 109th Street 311 East 109th Street New York NY
-5067086 -52294119 Peachwood Manor MHP 6895 S. Broadway Haysville KS
-5066856 -52293462 6972 Sheridan 6982 North Sheridan Chicago IL
894469366 894479625 Crest Oak Apts. 9900-9930 Bluebird St. Coon Rapids MN
4389 7319 1&3 Eves 1&3 Eves Drive Evesham NJ
4466 7209 Highland Park Townhomes 1404 N. 55th Drive Kansas City KS
890347495 -1752776637 Marbach Square SC 8300 Marbach Rd. San Antonio TX
891283780 -52294078 Sunpointe Gardens Apts. 2727 North Oracle Tucson AZ
2557 4368 Airport Executive Park 2459 Roosevelt Highway College Park GA
Parkside/Pleasant View MHP
- ------------------------------------------------------------------------------------------------------------------------------------
-5066135 -52293418 Parkside MHP 2315 Park Lane SE Rochester MN
-5066135 -52293419 Pleasantview MHP 9428 Grand Avenue Duluth MN
- ------------------------------------------------------------------------------------------------------------------------------------
-5067024 -52293737 Oakview Apartments 608-616 Lincoln Ave. St. Paul MN
4652 909570228 Expressway Commerce Complex 43466 I-94 Service Drive Belleville MI
891883946 -825914583 Brookside Apartments 804 100th Street Court East Tacoma WA
891979555 -52293826 Sundial Shopping Center 5757 Sannibel Drive Minnetonka MN
894495345 -52294100 501 State Street 501 State Street Santa Barbara CA
1963 3853 Uniontown Center 600-686 F Street Arcata CA
2108 4132 Cypress Creek Business Park 6555 N. Powerline Rd. Ft. Lauderdale FL
891980251 -52294024 Riverside Estates MHP 1891 Access Road Newton County GA
891978154 -52294026 Bahamas Apartments 1568 Nome Street Aurora CO
4562 413798560 The Midland Building 206th Avenue, Des Moines Iowa IA
4475 7215 236 & 238-240 East 7th Street 236 & 238-240 E. 7th St. New York NY
-5066956 -52293799 The River Park Center 0123 Emma Rd. Basalt CO
4233 6988 Pasadena Plaza Mart 1418 Spencer Highway South Houston TX
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 160,922.76 8.500% 6.60% $ 1,743,404 NACC TRUE
$ 151,418.28 7.550% 0.00% $ 1,700,000 NACC TRUE
$ 149,562.00 7.410% 5.00% $ 1,693,119 NACC TRUE
$ 138,642.24 7.230% 5.00% $ 1,692,665 NACC TRUE
$ 172,910.76 8.800% 5.00% $ 1,681,393 NACC TRUE
$ 142,261.20 7.530% 5.00% $ 1,600,000 NACC TRUE
$ 131,368.80 7.280% 6.80% $ 1,596,859 NACC TRUE
$ 129,340.68 7.250% 5.00% $ 1,576,918 Bloomfield TRUE
$ 124,246.32 7.040% 5.00% $ 1,550,000 NACC TRUE
$ 123,769.92 7.330% 6.45% $ 1,496,274 NACC TRUE
$ 129,825.96 7.820% 6.75% $ 1,493,190 NACC TRUE
$ 132,199.92 7.430% 5.00% $ 1,492,180 NACC TRUE
$ 135,052.80 7.750% 5.00% $ 1,482,705 NACC TRUE
$ 125,059.80 7.110% 5.00% $ 1,455,232 NACC TRUE
$ 132,859.92 7.910% 5.00% $ 1,451,197 NACC TRUE
$ 125,478.96 7.420% 5.00%
- --------------------------------------------------------------------------------
$ 1,008,078 NACC TRUE
$ 414,210 NACC TRUE
- --------------------------------------------------------------------------------
$ 1,422,288
$ 120,567.00 7.170% 5.00% $ 1,400,000 NACC TRUE
$ 116,434.44 7.410% 5.00% $ 1,396,600 NACC TRUE
$ 114,353.28 7.300% 5.00% $ 1,386,518 NACC TRUE
$ 113,755.68 7.320% 5.00% $ 1,378,433 NACC TRUE
$ 130,427.64 8.900% 6.70% $ 1,361,366 NACC TRUE
$ 120,833.76 7.480% 5.00% $ 1,360,856 NACC TRUE
$ 123,012.24 8.200% 5.00% $ 1,323,714 NACC TRUE
$ 114,472.08 7.420% 5.00% $ 1,296,006 NACC TRUE
$ 112,270.68 7.420% 5.00% $ 1,271,083 NACC TRUE
$ 124,628.40 7.400% 5.00% $ 1,500,000 NACC TRUE
$ 113,960.52 7.910% 5.00% $ 1,234,119 NACC TRUE
$ 106,695.84 7.530% 5.00% $ 1,197,772 NACC TRUE
$ 110,569.80 7.940% 5.00% $ 1,194,343 NACC TRUE
<PAGE>
<TABLE>
<CAPTION>
LoanID Asset Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
894482167 -477096727 Pleasant View MHP 305 S. Amy Lane Harker Heights TX
893802346 -52294105 Circuit City-Philadelphia 7207 Bustleton Aveneue Philadelphia PA
891981798 -52293986 Nanette Apartments 1360 Nanette Circle Reno NV
1484276706 -52293781 Central Plaza 11111 Central Expressway Dallas TX
101544054 -52293676 Brandenberry Square Apts 5290 Brandenberry Columbus OH
-5067099 -52293771 Champion MHP Route 5 East Elbridge NY
363882121 -1798458401 East Brunswick Woods 758 Route 18 East Brunswick NJ
-259363276 -52294109 Circuit City-Harper Woods 20570 Kelly Road Harper Woods MI
1955024770 -52294104 Circuit City-Ridgeland 1055 East Countyline Road Ridgeland MS
4317 7103 1590 Lexington Avenue 1590 Lexington Avenue New York NY
-1831827072 -52294111 Circuit City-East Lansing 2655 Grand River Avenue East Lansing MI
-1349565798 -52294110 Circuit City-Frederick 5606 Buckeystown Pike Fredrick MD
4767 -52294114 Circuit City-Green Bay 1940 West Mason Street Green Bay WI
-1311673432 -52294108 Circuit City-Indianapolis 3670 Moller Road Indianapolis IN
4322 7108 2156 2nd Avenue 2156 2nd Avenue New York NY
-1661813378 -52293957 OCC Financial Plaza 7210 Metro Blvd Edina MN
4313 7099 103 East 102nd Street 103 East 102nd Street New York NY
2141131315 2110498519 Windgate MHP 305 Farm Road 306 New Braunfels TX
318409646 -52294107 Circuit City-Jackson,TN 1938 Emporium Drive Jackson TN
2632 4628 291 Pleasant 291 Pleasant New York NY
-1399774698 -52294106 Circuit City-Kingsport 1740 Idle Hour Road Kingsport TN
1073566092 -52294103 Circuit City-Witchita Falls 3121 Lawence Road Wichita Fallas TX
</TABLE>
Revised Cut-off Date
Annual Debt Mortgage Mortgage Principal
Service Rate Rate Balance Originator Actual 360
- --------------------------------------------------------------------------------
$ 96,591.00 7.600% 5.00% $ 1,137,379 Bloomfield TRUE
$ 159,329.76 7.640% 0.00% $ 1,111,703 NACC FALSE
$ 93,675.72 7.250% 5.00% $ 1,076,568 NACC TRUE
$ 84,070.20 7.520% 5.00% $ 999,470 NACC TRUE
$ 86,891.52 7.270% 5.00% $ 999,019 NACC TRUE
$ 88,913.28 7.530% 5.00% $ 998,143 NACC TRUE
$ 86,520.24 8.500% 6.60% $ 936,063 NACC TRUE
$ 122,911.68 7.640% 0.00% $ 857,600 NACC FALSE
$ 113,807.16 7.640% 0.00% $ 794,075 NACC FALSE
$ 61,579.08 7.280% 6.80% $ 748,528 NACC TRUE
$ 102,426.48 7.640% 0.00% $ 714,667 NACC FALSE
$ 102,426.48 7.640% 0.00% $ 714,667 NACC FALSE
$ 102,426.48 7.640% 0.00% $ 714,667 NACC FALSE
$ 102,426.48 7.640% 0.00% $ 714,667 NACC FALSE
$ 49,263.24 7.280% 6.80% $ 598,822 NACC TRUE
$ 55,274.04 8.500% 6.60% $ 598,604 NACC TRUE
$ 45,158.04 7.280% 6.80% $ 548,920 NACC TRUE
$ 47,041.20 7.510% 5.00% $ 530,000 NACC TRUE
$ 75,112.68 7.640% 0.00% $ 524,089 NACC FALSE
$ 39,410.64 7.280% 6.80% $ 479,058 NACC TRUE
$ 68,284.32 7.640% 0.00% $ 476,445 NACC FALSE
$ 68,284.32 7.640% 0.00% $ 476,445 NACC FALSE
<PAGE>
EXHIBIT C-1
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
------------------, 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 CAPCO America Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D7, Class [R] [LR]
(the "Class [R] [LR] Certificate") is a Permitted Transferee (as defined in
Article I of the Pooling and Servicing Agreement dated as of September 11, 1998,
by and among CAPCO America Securitization Corporation, as depositor, The Capital
Company of America Client Services LLC, as servicer, AMRESCO Services, L.P., as
Co-Servicer, AMRESCO Services, L.P., as Operating Advisor, AMRESCO Management,
Inc., as Special Servicer, LaSalle National Bank, as trustee, and ABN AMRO Bank
N.V., as fiscal agent (the "Pooling and Servicing Agreement")), or is acquiring
the Class [R] [LR] Certificate for the account of, or as agent (including as a
broker, nominee, or other middleman) for, a Permitted Transferee 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 Class [R] [LR] Certificate as
they become due.
5. That the Purchaser understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [LR] Certificate 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 in paragraph 3, paragraph 4 or
paragraph 7 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 is not a Disqualified Non-U.S. Person and is not
purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. 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 Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4 and paragraph 7 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC][Lower-Tier REMIC], the Purchaser agrees to act
as "tax matters person" and to perform the functions of "tax matters partner" of
the [Upper-Tier REMIC][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" and "tax matters partner."
10. 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 Class [R] [LR] Certificate.
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-.
[Purchaser]
By:
------------------------
Title:
Name:
<PAGE>
Personally appeared before me the above-named ---------------, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ------------- of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and the free act and deed of the
Purchaser.
Subscribed and sworn before me this ------- day of -------------------,
199-.
- ------------------------------
NOTARY PUBLIC
COUNTY OF -----------
STATE OF ---------
My commission expires the -------- day of ----------------, 199-.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Corporate Trust Administration
Re: CAPCO America Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D7, Class [R][LR]
--------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the information contained in paragraph 4 or 7 thereof is not true.
Very truly yours,
[Transferor]
-----------------------------------
<PAGE>
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Corporate Trust Administration
CAPCO America Securitization Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Marlyn Marincas
Re: Transfer of CAPCO America Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D7
--------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of September 11, 1998 (the "Pooling and Servicing
Agreement"), by and among CAPCO America Securitization Corporation, as
depositor, The Capital Company of America Client Services LLC, as servicer,
AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as Operating
Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle National Bank,
as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"), on behalf of the Holders of CAPCO America Securitization Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1998-D7 (the
"Certificates") in connection with the transfer by ----------------- (the
"Seller") to the undersigned (the "Purchaser") of [[$------------] aggregate
Certificate Balance] [[---]% Percentage Interest] of Class [ ] Certificates
(such registered interest being the "Certificate"). Capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows [check one of the following]:
[ ] [For Institutional Accredited Investors only] We are an
"institutional accredited investor" (an entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act of 1933, as amended (the "Securities
Act")) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of our investment in the Certificate, and we and any
accounts for which we are acting are each able to bear the
economic risk of our or its investment. We are acquiring the
Certificate purchased by us for our own account or for one or
more accounts (each of which is an "institutional accredited
investor") as to each of which we exercise sole investment
discretion. The Purchaser hereby undertakes to reimburse the
Trust for any costs incurred by it in connection with this
transfer.
[ ] [For Qualified Institutional Buyers only] The Purchaser is a
"qualified institutional buyer" within the meaning of Rule 144A
("Rule 144A") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser is aware that the
transfer is being made in reliance on Rule 144A, and the
Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
[ ] [For Affiliated Persons Only] The Purchaser is a person involved
in the organization or operation of the issuer or an affiliate of
such a person, as defined in Rule 405 of the Securities Act of
1933, as amended (the "Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, or (ii) to "institutional
accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the Securities Act, pursuant to any other
exemption from the registration requirements of the Securities Act, subject in
the case of this clause (ii) to (a) the receipt by the Certificate Registrar of
a letter substantially in the form hereof, (b) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar that
such reoffer, resale, pledge or transfer is in compliance with the Securities
Act, (c) the receipt by the Certificate Registrar of such other evidence
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act and other applicable laws, and
(d) a written undertaking to reimburse the Trust for any costs incurred by it in
connection with the proposed transfer. It understands that the Certificate (and
any subsequent Individual Certificate) has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
4. The Purchaser has reviewed the Private Placement Memorandum dated
September [ ], 1998, relating to the Certificates (the "Private Placement
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 Private Placement
Memorandum.
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 an
Individual 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, except in compliance with Section 5.02 of the Pooling and Servicing
Agreement.
7. Check one of the following:*
[ ] The Purchaser is a "U.S. Person" 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 (except to the
extent provided in applicable Treasury Regulations) 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 court within the United
States is able to exercise primary supervision over the administration of such
trust, and one or
- ----------
* Each Purchaser must include one of the two alternative certifications.
<PAGE>
more United States fiduciaries have the authority to control all substantial
decisions of such trust, (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Please make all payments due on the Certificates:**
[ ] (a) by wire transfer to the following account at a bank or entity in
New York, New York, having appropriate facilities therefore:
Account number --------- Institution ------------------
[ ] (b) by mailing a check or draft to the following address:
----------------------------------------------
----------------------------------------------
----------------------------------------------
Very truly yours,
----------------------------------------------
[The Purchaser]
By:
-------------------------------------------
Name:
Title
Dated:
--------- ---, -----
- ----------
** Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b). For Holders of Individual Certificates, wire transfers
are only available if such holder's Individual Certificates have an
aggregate principal face amount of at least U.S. $5,000,000.
<PAGE>
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
---------- ---, ----
LaSalle National Bank, as Trustee
and Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Corporate Trust Administration
CAPCO America Securitization Corporation
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
Attention: Marlyn Marincas
Re: CAPCO America Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D7, Class [A-2][A-3][A-4][A-5]
[B-1][B-2][B-3][B-4][B-5][B-6][B-6H] [V-1][V-2][R][RL]
------------------------------------------------------
Ladies and Gentlemen:
----------------------------- (the "Purchaser") intends to purchase from
- -------------------------- (the "Seller") $---------- initial Certificate
Balance or -----% Percentage Interest of CAPCO America Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1998-D7,
Class[A-2][A-3][A-4][A-5][B-1][B-2][B-3][B-4][B-5][B-6][B-6H][V-1][V-2][R] [LR],
CUSIP No. ---------------- (the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
September 11, 1998, by and among CAPCO America Securitization Corporation, as
depositor (the "Depositor"), The Capital Company of America Client Services LLC,
as servicer, AMRESCO Services, L.P., as Co-Servicer, AMRESCO Services, L.P., as
Operating Advisor, AMRESCO Management, Inc., as Special Servicer, LaSalle
National Bank, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent. All capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Pooling and Servicing Agreement. The Purchaser
hereby certifies, represents and warrants to, and covenants with, the Depositor,
the Certificate Registrar and the Trustee that:
1. The Purchaser is not (a) an employee benefit plan or other retirement
arrangement, including an individual retirement account or a Keogh plan, which
is subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), Section 4975
<PAGE>
of the Code, or any essentially similar Federal, State or local law (a "Similar
Law") (each, a "Plan"), nor (b) a collective investment fund in which such Plans
are invested, an insurance company using assets of separate accounts or general
accounts which include assets of Plans (or which are deemed pursuant to ERISA or
any Similar Law to include assets of Plans) or other Person acting on behalf of
any such Plan or using the assets of any such Plan, other than an insurance
company using the assets of its general account under circumstances whereby such
purchase and the subsequent holding of such Certificate by such insurance
company would not constitute or result in a prohibited transaction within the
meaning of Section 406 or 407 or ERISA, Section 4975 of the Code, or a
materially similar characterization under any Similar Law; and
2. The Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or 1(b) above, except in the case of the Class R or Class LR
Certificate, which may not be transferred unless the transferee represents it is
not such a Person, such Purchaser is required to provide to the Depositor, the
Trustee and the Certificate Registrar an Opinion of Counsel which establishes to
the satisfaction of the Depositor, the Trustee and the Certificate Registrar
that the purchase or holding of the Certificates by or on behalf of a Plan will
not result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA and the Code or
Similar Law, and will not constitute or result in a prohibited transaction
within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the
Code, and will not subject the Servicer, the Co-Servicer, the Special Servicer,
the Depositor, the Trustee or the Certificate Registrar to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975 of
the Code), which Opinion of Counsel shall not be at the expense of the Servicer,
the Co-Servicer, the Special Servicer, the Depositor, the Trustee or the
Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes the ERISA Representation
Letter on ----------------- ----, -----.
Very truly yours,
-----------------------------------------
By:--------------------------------------
Name:---------------------------------
Title:--------------------------------
<PAGE>
EXHIBIT E
FORM OF REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
- ----------------
Name of Mortgagor: ----------------
Servicer
Loan No.: ----------------
Custodian/Trustee
- -----------------
Name: ----------------
Address: ----------------
Custodian/Trustee
Mortgage File No.: ----------------
Depositor
- ---------
Name: ----------------
Address: ----------------
Certificates: CAPCO America Securitization
Corporation, Commercial
Mortgage Pass-Through
Certificates, Series
1998-D7
The undersigned [Servicer/Co-Servicer] hereby acknowledges that it has
received from LaSalle National Bank, as Trustee for the Holders of CAPCO America
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-D7, the documents referred to below (the "Documents"). All
capitalized terms of not otherwise defined in this Request for Release shall
have the meanings given them in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of September 11, 1998, by and among
the Trustee, ABN AMRO Bank N.V., as fiscal agent, CAPCO America Securitization
Corporation, as depositor, The Capital Company of America Client Services LLC,
as servicer, AMRESCO Services, L.P., as co-servicer, AMRESCO Services, L.P., as
operating advisor, and AMRESCO Management, Inc., as special servicer.
( ) Promissory Note dated ----------, 199--, in the original principal sum of
$----- , made by -------------------, payable to, or endorsed to the order
of, the Trustee.
( ) Mortgage recorded on ---------- as instrument no. ------- in the County
Recorder's Office of the County of ---------, State of ------------ in
book/reel/docket ---------- of official records at page/image -------.
( ) Deed of Trust recorded on ---------- as instrument no. -------- in the
County Recorder's Office of the County of ------------, State of
------------ in book/reel/docket ------------ of official records at
page/image ----------.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
---------- as instrument no. ------- in the County Recorder's Office of the
County of ------------, State of ------------ in book/reel/docket
---------- of official records at page/image -------.
( ) Other documents, including any amendments, assignments or other assumptions
of the Note or Mortgage.
( ) ---------------------
( ) ---------------------
( ) ---------------------
( ) ---------------------
The undersigned [Servicer/Co-Servicer] hereby acknowledges and agrees as
follows:
(1) The [Servicer/Co-Servicer] shall hold and retain possession of
the Documents in trust for the benefit of the Trustee, solely for
the purposes provided in the Agreement.
(2) The [Servicer/Co-Servicer] shall not cause or permit the
Documents to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of attachment or other
impositions nor shall the Servicer assert or seek to assert any
claims or rights of set-off to or against the Documents or any
proceeds thereof.
(3) The [Servicer/Co-Servicer] shall return the Documents to the
Custodian when the need therefor no longer exists, unless the
Mortgage Loan
<PAGE>
relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Collection Account and except
as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the
[Servicer/Co-Servicer] shall at all times be earmarked for the
account of the Trustee, and the [Servicer/Co-Servicer] shall keep
the Documents and any proceeds separate and distinct from all
other property in the [Servicer's/Co-Servicer's] possession,
custody or control.
[THE CAPITAL COMPANY OF
AMERICA CLIENT SERVICES LLC]
[AMRESCO SERVICES, L.P.]
By:
----------------------------
Title:
-------------------------
Date: , 19--
<PAGE>
EXHIBIT F
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT, dated as of [ ] by and among [NAME OF CUSTODIAN],
as Custodian (the "Custodian"), The Capital Company of America Client Services
LLC, as servicer (the "Servicer"), AMRESCO Services, L.P., as co-servicer (the
"Co-Servicer"), AMRESCO Services, L.P., as Operating Advisor (the "Operating
Advisor"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), and LaSalle National Bank, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Servicer, the Co-Servicer, Special Servicer and the Trustee
are parties to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of September 11, 1998, among CAPCO America Securitization
Corporation, as Depositor, the Servicer, the Co-Servicer, the Special Servicer,
the Trustee and ABN AMRO Bank N.V., as Fiscal Agent, relating to CAPCO America
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-D7 (capitalized terms used but not defined herein having the meaning
assigned thereto in the Pooling and Servicing Agreement);
WHEREAS, the parties hereto desire the Custodian to take possession of the
documents specified in Section 2.01 of the Pooling and Servicing Agreement, as
custodian for the Trustee, in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
1. The Trustee hereby certifies that it has caused to be delivered and
released to the Custodian and the Custodian hereby acknowledges receipt of the
documents specified in Section 2.01 of the Pooling and Servicing Agreement
pertaining to each of the Mortgage Loans identified in the Mortgage Loan
Schedule attached to the Pooling and Servicing Agreement as Exhibit B. From time
to time, the Servicer or the Co-Servicer, as applicable, shall forward to the
Custodian additional original documents evidencing an assumption or modification
of a Mortgage Loan approved by the Servicer or the Co-Servicer, as applicable.
All Mortgage Loan documents held by the Custodian as to each Mortgage Loan are
referred to herein as the "Custodian's Mortgage File." The Custodian hereby
agrees to review each of the Custodian's Mortgage Files and perform such other
obligations of the Custodian as such obligations are set forth in the Pooling
and Servicing Agreement (including Section 2.02 thereof).
2. With respect to each Note, each Mortgage, each Assignment of Mortgage
and each other document constituting each Custodian's Mortgage File which is
delivered to the Custodian or which at any time comes into the possession of the
Custodian, the Custodian is exclusively the custodian for and the bailee of the
Trustee or the Servicer or the Co-Servicer, as applicable. The Custodian shall
hold all documents constituting each Custodian's Mortgage File received by it
for the exclusive use and benefit of the Trustee, and shall make disposition
thereof only in accordance with the instructions furnished by the Servicer or
the Co-Servicer, as applicable. The Custodian shall segregate and maintain
continuous custody of all documents constituting the Custodian's Mortgage File
received in secure and fire resistant facilities located in the State of
- ---------- in accordance with customary standards for such custody. In the event
the Custodian discovers any defect with respect to any Custodian's Mortgage
File, the Custodian shall give written specification of such defect to the
Servicer or the Co-Servicer, as applicable, and the Trustee.
3. From time to time and as appropriate for the foreclosure or servicing of
any of the Mortgage Loans, the Custodian is hereby directed, upon written
request and receipt from the Servicer (a copy of which shall be forwarded to the
Trustee), to release to the Servicer or the Co-Servicer, as applicable, the
related Custodian's Mortgage File or the documents set forth in such receipt to
the Servicer or the Co-Servicer, as applicable. All documents so released to the
Servicer shall be held by it in trust for the benefit of the Trustee. The
Servicer or the Co-Servicer, as applicable, shall return to the Custodian the
Custodian's Mortgage File or such documents when the Servicer's or the
Co-Servicer's need therefor in connection with such foreclosure or servicing no
longer exists, unless the Mortgage Loan shall be liquidated, in which case, upon
receipt of a certification to this effect from the Servicer or the Co-Servicer,
as applicable, to the Custodian, the Servicer's or the Co-Servicer's receipt
shall be released by the Custodian to the Servicer or the Co-Servicer, as
applicable.
4. Upon the purchase of any Mortgage Loan pursuant to the terms of the
Pooling and Servicing Agreement or the payment in full of any Mortgage Loan, and
upon receipt by the Custodian of the Servicer's request for release, receipt and
certification (which certification shall include a statement to the effect that
all amounts received in connection with such payment or repurchase have been
credit to the Collection Account or Distribution Account as provided in the
Pooling and Servicing Agreement), the Custodian shall promptly release the
related Custodian's Mortgage File to the Servicer or the Co-Servicer, as
applicable.
5. It is understood that the Custodian will charge such fees for its
services under this Agreement as are set forth in a separate agreement between
the Custodian and the Servicer, the payment of which, together with the
Custodian's expenses in connection therewith, shall be solely the obligation of
the Servicer or the Co-Servicer, as applicable.
6. The Trustee may upon 30 days written days notice (with copy to the
Servicer and the Co-Servicer) remove and discharge the Custodian or any
successor Custodian thereafter appointed from the performance of its duties
under this Custodial Agreement. Simultaneously, the Trustee shall appoint a
successor Custodian to act on its behalf by written instrument, one original
counterpart of which instrument shall be delivered to each Rating Agency, one
copy to the Servicer, one copy to the Co-Servicer and one copy to the successor
Custodian. In the event of any such removal, the Custodian shall promptly
transfer to the successor Custodian, as directed, all Custodian's Mortgage Files
being administered under this Custodial Agreement. Notwithstanding the
foregoing, so long as The Capital Company of America Client Services LLC is
Servicer, the Trustee shall not have a right to remove the Custodian.
7. Upon reasonable prior written notice to the Custodian, the Trustee and
its agents, accountants, attorneys and auditors will be permitted during normal
business hours to examine the Custodian's Mortgage Files, documents, records and
other papers in the possession of or under the control of the Custodian relating
to any or all of the Mortgage Loans.
8. If the Custodian is furnished with written notice from the Trustee or
the Servicer or the Co-Servicer, as applicable, that the Pooling and Servicing
Agreement has been terminated as to any or all of the Mortgage Loans, it shall
upon written request of the Trustee or the Servicer or the Co-Servicer, as
applicable, release to such persons as the Trustee or the Servicer or the
Co-Servicer, as applicable, shall designate the Custodian's Mortgage Files
relating to such Mortgage Loans as the Trustee or the Servicer or the
Co-Servicer, as applicable, shall request and shall complete the Assignments of
Mortgage and endorse the Notes only as, and if, the Trustee or the Servicer or
the Co-Servicer, as applicable, shall request. The person making such written
request shall send notice of such request to all other parties to the Pooling
and Servicing Agreement.
9. The Custodian shall, at its own expense, maintain at all times during
the existence of this Custodial Agreement and keep in full force and effect (a)
fidelity insurance, (b) theft of documents insurance, (c) forgery insurance and
(d) errors and omissions insurance. All such insurance shall be in amounts, with
standard coverage and subject to deductibles, as are customary for insurance
typically maintained by banks which act as custodian in similar transactions
provided, however, that so long as the Custodian is rated at least "AA" no such
insurance shall be required.
10. This Custodial 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 and be one and the same instrument.
11. Within 10 days of each anniversary of the date of this Custodial
Agreement, or upon the request of the Trustee, the Servicer or the Co-Servicer
at any other time, the Custodian shall provide to the Trustee and the Servicer
or the Co-Servicer, as applicable, a list of all the Mortgage Loans for which
the Custodian holds a Custodian's Mortgage File pursuant to this Custodial
Agreement. Such list may be in the form of a copy of the Mortgage Loan Schedule
with manual deletions to specifically denote any Mortgage Loans paid off,
liquidated or repurchased since the date of this Custodial Agreement.
12. This Custodial Agreement shall be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
13. By execution of this Custodial Agreement, the Custodian warrants that
it currently does not hold and during the existence of this Custodial Agreement
shall not hold any adverse interest, by way of security or otherwise, in any
Mortgage Loan, and hereby waives and releases any such interest which it may
have in any Mortgage Loan as of the date hereof.
14. The Custodian may terminate its obligations under this Custodial
Agreement upon at least 60 days notice to the Trustee, the Servicer and the
Co-Servicer, provided that so long as AMRESCO Services Limited Partnership is
the Servicer, The Capital Company of America Client Services LLC will not resign
from its duties hereunder. In the event of such termination, the Trustee shall
appoint a successor Custodian. Upon such appointment, the Custodian shall
promptly transfer to the successor Custodian, as directed, all Custodian's
Mortgage Files being administered under this Custodial Agreement.
15. This Custodial Agreement shall terminate upon the final payment or
other liquidation (or advance with respect thereto) of the last Mortgage Loan or
the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and the final remittance of all funds due the
Certificateholders under the Pooling and Servicing Agreement. In such event, all
documents remaining in the Custodian's Mortgage Files shall be forwarded to the
Trustee.
16. All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given when received by the addressee. Any
such demand, notice or communication hereunder shall be deemed to have been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted on
the return receipt).
17. Each of the Servicer and the Co-Servicer shall indemnify, defend, and
hold harmless the Custodian for any actions taken by the Custodian at its
written request.
<PAGE>
IN WITNESS WHEREOF, the Custodian, the Servicer, the Co-Servicer and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the date first written above.
[NAME OF CUSTODIAN],
as Custodian
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE CAPITAL COMPANY OF AMERICA
CLIENT SERVICES LLC,
as Servicer
By:
[--------------------------------------------]
Ann Hambly, President
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
AMRESCO SERVICES, L.P.
as Co-Servicer
By: AMRESCO MORTGAGE CAPITAL, INC.,
its General Partner
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
<PAGE>
AMRESCO MANAGEMENT, INC.
as Special Servicer
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
LASALLE NATIONAL BANK,
as Trustee
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
<PAGE>
EXHIBIT G
SECURITIES LEGEND
The Private Certificates will bear a legend (the "Securities Legend") to
the following effect, unless the Certificate Registrar determines otherwise in
accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE
OR FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT
AND OTHER APPLICABLE LAWS AND ONLY (A)(1) PURSUANT TO RULE 144A UNDER
THE 1933 ACT TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF
RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN
EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, OR (3)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF
REGULATION S UNDER THE 1933 ACT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
<PAGE>
EXHIBIT H-1
CCA MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
<PAGE>
EXHIBIT H-2
FINANCING TRUST MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
<PAGE>
EXHIBIT I
FORM OF REGULATION S TRANSFER CERTIFICATE
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of CAPCO America Securitization Corporation, Commercial
Mortgage Past-Through Certificates, Series 1998-D7, Class [ ]
-------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of September 11, 1998 (the "Pooling and Servicing
Agreement"), by and among CAPCO America Securitization Corporation, as
depositor, The Capital Company of America Client Services LLC, as servicer (the
"Servicer"), AMRESCO Services, L.P., as co-servicer (the "Co-Servicer"), AMRESCO
Services, L.P., as operating advisor (the "Operating Advisor"), AMRESCO
Management, Inc., as special servicer (the "Special Servicer"), LaSalle National
Bank, as trustee (the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent"), on behalf of the Holders of the CAPCO America Securitization
Corporation, Commercial Mortgage Pass-Through Certificates, 1998-D7, Class [ ]
(the "Certificates") in connection with the transfer by the undersigned (the
"Transferor") to ------------ (the "Transferee") of $---------------------
Certificate Balance of Certificates, in fully registered form (each, an
"Individual Certificate"), or a beneficial interest of such aggregate
Certificate Balance in the Regulation S Global Certificate (the "Global
Certificate") maintained by The Depository Trust Company or its successor as
Depositary under the Pooling and Servicing Agreement (such transferred interest,
in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Pooling and Servicing Agreement and the Certificates and (i) with
respect to transfers made in accordance with Regulation S ("Regulation S")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person in
the United States;
<PAGE>
[(2) at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the Transferee was outside the United
States;]*
[(2) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged
with a buyer in the United States;]*
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Fiscal Agent, the
Servicer, the Co-Servicer, the Operating Advisor and the Special Servicer.
--------------------------------
Transferor
By:
-----------------------------
Name:
Title:
Dated: --------- --, 199-
- ----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
<PAGE>
EXHIBIT J
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to
Section 5.02(c)(ii)(A) of the Pooling and Servicing Agreement)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of CAPCO America Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D7 Class [ ]
------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
September 11, 1998 (the "Pooling and Servicing Agreement"), by and among CAPCO
America Securitization Corporation, as depositor (the "Depositor"), The Capital
Company of America Client Services LLC, as servicer (the "Servicer"), AMRESCO
Services, L.P., as co-servicer (the "Co-Servicer"), AMRESCO Services, L.P., as
operating advisor (the "Operating Advisor"), AMRESCO Management, Inc., as
special servicer (the "Special Servicer"), LaSalle National Bank, as trustee
(the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[----------] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Rule 144A
Global Certificate (CUSIP No. ) with the Depository in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest for an interest in the Regulation S Global Certificate
(CUSIP No. ) to be held with [Euroclear] [CEDEL]* (Common Code ) through the
Depositary.
In connection with such request and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the
- ----------
* Select appropriate depository.
<PAGE>
transfer restrictions set forth in the Pooling and Servicing Agreement and
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and accordingly the Transferor does
hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2)at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[(2)the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States,]**
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Co-Servicer, the Operating Advisor, the Special Servicer and the Fiscal Agent.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
------------, -----
- ----------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
<PAGE>
EXHIBIT K
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(B) of the Pooling and Servicing Agreement)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of CAPCO America Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D7, Class [ ]
-------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
September 11, 1998 (the "Pooling and Servicing Agreement"), by and among CAPCO
America Securitization Corporation, as depositor, The Capital Company of America
Client Services LLC, as servicer (the "Servicer"), AMRESCO Services, L.P., as
co-servicer (the "Co-Servicer"), AMRESCO Services, L.P., as operating advisor
(the "Operating Advisor"), AMRESCO Management, Inc., as special servicer (the
"Special Servicer"), LaSalle National Bank, as trustee (the "Trustee") and ABN
AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[----------] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Rule 144A
Global Certificate (CUSIP No. ) with the Depository in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Certificates for an interest in the Regulation S
Global Certificate (Common Code No. ).
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and, (i) with respect to transfers made in reliance on Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), the
Transferor does hereby certify that:
<PAGE>
(1) the offer of the Certificates was not made to a person in the
United States,
[(2)at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]*
[(2)the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States,]*
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Fiscal Agent, the
Servicer, the Co-Servicer, the Operating Advisor and the Special Servicer.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
------------, -----
- ----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
<PAGE>
EXHIBIT L
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(C) of the Pooling and Servicing Agreement)
[Certificate Registrar]
Attention: Corporate Trust Administration
Re: Transfer of CAPCO America Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1998-D7, Class [ ]
-------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement dated as of
September 11, 1998 (the "Pooling and Servicing Agreement"), by and among CAPCO
America Securitization Corporation, as depositor (the "Depositor"), The Capital
Company of America Client Services LLC, as servicer (the "Servicer"), AMRESCO
Services, L.P., as co-servicer (the "Co-Servicer"), AMRESCO Services, L.P., as
operating advisor (the "Operating Advisor"), AMRESCO Management, Inc., as
special servicer (the "Special Servicer"), LaSalle National Bank, as trustee
(the "Trustee") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[----------] aggregate Certificate Balance of
Certificates (the "Certificates") which are held in the form of the Regulation S
Global Certificate (CUSIP No. ----------) with [Euroclear] [CEDEL]* (Common Code
- ----------) through the Depository in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Certificates for an interest in the Regulation 144A Global
Certificate (CUSIP No. ----------).
- ----------
* Select appropriate depository.
<PAGE>
In connection with such request, and in respect of such Certificates, the
Transferor does hereby certify that such Certificates are being transferred in
accordance with
(i) the transfer restrictions set forth in the Pooling and Servicing Agreement
and (ii) Rule 144A under the Securities Act to a transferee that the Transferor
reasonably believes is purchasing the Certificates for its own account with
respect to which the transferee exercises sole investment discretion and the
transferee and any such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in each case in a transaction meeting the requirements of
Rule 144A and in accordance with any applicable securities laws of any state of
the United States or an jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trustee, the Fiscal Agent, the
Servicer, the Co-Servicer, the Operating Advisor, the Special Servicer and
Nomura Securities International, Inc., Merrill Lynch, Pierce Fenner & Smith and
Morgan Stanley & Co.
Incorporated, the Underwriters of the offering of the Certificates.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
------------, 19-----
<PAGE>
EXHIBIT M-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
Capital Company of America Client Services LLC
Commercial Mortgage Pass-Through Certificates, Series 1998-D7
Comparative Financial Status Report
as of October 13, 1998
<TABLE>
<CAPTION>
Original Underwriting Information
Base Year
---------
PPM Nomura Amresco Current Paid Annual Financial
Loan Loan Loan Scheduled Thru Debt Inspection Info as of % Total
Number Number Number City State Balance Date Service Date Date Occupied Revenue
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Prior Year Financial Information
--------------------------------
PPM Nomura Amresco Last Financial
Loan Loan Loan $ Inspection Info as of % Total
Number Number Number City State NOI DSC Date Date Occupied Revenue
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Current Annual Operating Information
------------------------------------
PPM Nomura Amresco Last Financial
Loan Loan Loan $ Inspection Info as of % Total
Number Number Number City State NOI DSC Date Date Occupied Revenue
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Year to Date Information
------------------------
PPM Nomura Amresco Financial
Loan Loan Loan $ Info as of Total
Number Number Number City State NOI DSC Date Revenue
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Net Change
Current vs Base
---------------
PPM Nomura Amresco Annual
Loan Loan Loan Debt $ % Total
Number Number Number City State Service NOI DSC Occupied Revenue DSC
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT M-2
FORM OF DELINQUENT LOAN STATUS REPORT
Capital Company of America Client Services LLC
Commercial Mortgage Pass-Through Certificates, Series 1998-D7
Delinquent Loan Status Report
as of -----------------
Paid
Prospectus Property Sq. Ft. Thru
ID Name Type City State or Units Date
- --------------------------------------------------------------------------------
90+ Days Delinquent
Scheduled Total Total Other Current Current
Loan P&I Advances Expenses Advances Total Monthly Interest
Balance To-Date To-Date Tax & Escrow Exposure P&I Rate
- --------------------------------------------------------------------------------
90+ Days Delinquent
Value Appraisal
LTM ***Cap using NOI PBO or Loss Using
Maturity NOI LTM LTM Rate & Cap Valuation Internal 90% Appr.
Date Date NOI DSCR Assigned Rate Date Value or BPO
- --------------------------------------------------------------------------------
90+ Days Delinquent
Total
Estimated Appraisal FCL Expected
Recovery Reduction Transfer Resolution Start FCL Sale Workout
% Realized Date Date Date Date Strategy Comments
- --------------------------------------------------------------------------------
90+ Days Delinquent
Paid
Prospectus Property Sq. Ft. Thru
ID Name Type City State or Units Date
- --------------------------------------------------------------------------------
60+ Days Delinquent
Scheduled Total Total Other Current Current
Loan P&I Advances Expenses Advances Total Monthly Interest
Balance To-Date To-Date Tax & Escrow Exposure P&I Rate
- --------------------------------------------------------------------------------
60+ Days Delinquent
Value Appraisal
LTM ***Cap using NOI PBO or Loss Using
Maturity NOI LTM LTM Rate & Cap Valuation Internal 90% Appr.
Date Date NOI DSCR Assigned Rate Date Value or BPO
- --------------------------------------------------------------------------------
60+ Days Delinquent
Total
Estimated Appraisal FCL Expected
Recovery Reduction Transfer Resolution Start FCL Sale Workout
% Realized Date Date Date Date Strategy Comments
- --------------------------------------------------------------------------------
60+ Days Delinquent
Paid
Prospectus Property Sq. Ft. Thru
ID Name Type City State or Units Date
- --------------------------------------------------------------------------------
30+ Days Delinquent
Scheduled Total Total Other Current Current
Loan P&I Advances Expenses Advances Total Monthly Interest
Balance To-Date To-Date Tax & Escrow Exposure P&I Rate
- --------------------------------------------------------------------------------
30+ Days Delinquent
Value Appraisal
LTM ***Cap using NOI PBO or Loss Using
Maturity NOI LTM LTM Rate & Cap Valuation Internal 90% Appr.
Date Date NOI DSCR Assigned Rate Date Value or BPO
- --------------------------------------------------------------------------------
30+ Days Delinquent
Total
Estimated Appraisal FCL Expected
Recovery Reduction Transfer Resolution Start FCL Sale Workout
% Realized Date Date Date Date Strategy Comments
- --------------------------------------------------------------------------------
30+ Days Delinquent
Paid
Prospectus Property Sq. Ft. Thru
ID Name Type City State or Units Date
- --------------------------------------------------------------------------------
Current and Special Serviced
Scheduled Total Total Other Current Current
Loan P&I Advances Expenses Advances Total Monthly Interest
Balance To-Date To-Date Tax & Escrow Exposure P&I Rate
- --------------------------------------------------------------------------------
Current and Special Serviced
Value Appraisal
LTM ***Cap using NOI PBO or Loss Using
Maturity NOI LTM LTM Rate & Cap Valuation Internal 90% Appr.
Date Date NOI DSCR Assigned Rate Date Value or BPO
- --------------------------------------------------------------------------------
Current and Special Serviced
Total
Estimated Appraisal FCL Expected
Recovery Reduction Transfer Resolution Start FCL Sale Workout
% Realized Date Date Date Date Strategy Comments
- --------------------------------------------------------------------------------
Current and Special Serviced
FCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12m
Workout Strategy should match the CSSA Loan file using abbreviated words in
place of a code number such as (FCL-In Foreclosure, MOD-Modification,
DPO-Discounted Payoff, NS-Note Sale, BK-Bankruptcy,
It is possible to combine the status codes if the loan is going in more than one
direction (ie. FCL/MOD, BK/MOD, BK/FCL/DPO) PP-Payment Plan, TBD-To Be
Determined, App-Appraisal, BPO-Brokers Opinion, Int. Internal Value
- ----------
*** How to determine the cap rate is agreed upon by the Underwriter and
Servicers- to be provided by a third party.
<PAGE>
EXHIBIT M-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
Capital Company of America Client Services LLC
Commercial Mortgage Pass-Through Certificates, Series 1998-D7
Historical Loan Modification Report
as of October 13, 1998
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 P49 P48 P7* P7* P50*
- ------------------------------------------------------------------------------------------------------------------------------------
Balance
When Balance at the
Mod/ Sent to Effective Date # Mths
Propectus Extension Effect Special of Old for Rate
ID City State Flag Date Servicer Rehabilliation Rate Change
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
This Report is Historical
- ------------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line it should not change in the future. Only new modifications should be added.
- ------------------------------------------------------------------------------------------------------------------------------------
None
- ------------------------------------------------------------------------------------------------------------------------------------
Total For All Loans:
- ------------------------------------------------------------------------------------------------------------------------------------
Total For Loans In Current Month:
- ------------------------------------------------------------------------------------------------------------------------------------
#of Loans $ Balance
- ------------------------------------------------------------------------------------------------------------------------------------
Modifications:
- ------------------------------------------------------------------------------------------------------------------------------------
Maturity Date Extensions:
- ------------------------------------------------------------------------------------------------------------------------------------
Total:
- ------------------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should
not change on this report once assigned.
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Actual principal loss taken bu bonds.
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 P50* P25* P11* P11* P47
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Est.
Future
Total# Interest
Mths (1) Loss to
for Realized Trust $
Propectus New Old New Change Loss to (Rate
ID Rate Old P&I Maturity Maturity of Mod Trust $ Reduction) COMMENT
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
This Report is Historical
- ------------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line it should not change in the future. Only new modifications should be added.
- ------------------------------------------------------------------------------------------------------------------------------------
None
- ------------------------------------------------------------------------------------------------------------------------------------
Total For All Loans:
- ------------------------------------------------------------------------------------------------------------------------------------
Total For Loans In Current Month:
- ------------------------------------------------------------------------------------------------------------------------------------
#of Loans $ Balance
- ------------------------------------------------------------------------------------------------------------------------------------
Modifications:
- ------------------------------------------------------------------------------------------------------------------------------------
Maturity Date Extensions:
- ------------------------------------------------------------------------------------------------------------------------------------
Total:
- ------------------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should
not change on this report once assigned.
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Actual principal loss taken bu bonds.
- ------------------------------------------------------------------------------------------------------------------------------------
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT M-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT
Capital Company of America Client Services LLC
Commercial Mortgage Pass-Through Certificates, Series 1998-D7
HISTORICAL LOSS ESTIMATE REPORT ( REO-SOLD or DISCOUNTED PAYOFF)
as of --------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P45/P7 P75 P45 P7 P37
- ------------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e) (f)
- ------------------------------------------------------------------------------------------------------------------------------------
% Latest
Short Name Received Appraisal Effect Net Amt
Prospectus (when Property From of Brokers Date of Sales Received Scheduled Total P&I
ID appropriate) Type City State State Opinion Sale Price from Sale Balance Advanced
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
- ------------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
- ------------------------------------------------------------------------------------------------------------------------------------
None
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
- ------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 S55 P39+P38
- ------------------------------------------------------------------------------------------------------------------------------------
(g) (h) (l)=d(f+g+h) (k)=l*e (m) (n)= k+m (o)= n/e
- ------------------------------------------------------------------------------------------------------------------------------------
Date Minor
Short Name Servicing Loss Adj Total Loss Loss % of
Prospectus (when Total Fees Net Actual Losses Passed Minor Adj Passed with Scheduled
ID appropriate) Expenses Expense Proceeds Passed thru thru to Trust thru Adjustment Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
- ------------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
- ------------------------------------------------------------------------------------------------------------------------------------
None
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
- ------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT M-5
FORM OF REO STATUS REPORT
S4 S55 S61 S57 S58 S62 or
S63
PROSPECTUS ID SHORT NAME PROPERTY TYPE CITY STATE SQ FT OR UNITS
(WHEN
APPROPRIATE)
- --------------------------------------------------------------------------------
P8 P7 P37 P39 P38
(a) (b) (C) (D)
PAID THRU DATE SCHEDULED LOAN TOTAL P&I ADVANCES TOTAL EXPENSES OTHER ADVANCES
BALANCE ADVANCES TO TO DATE (TAXES &
TO DATE ESCROW)
- --------------------------------------------------------------------------------
P25 P11 P58 P54
(E)=A+B+C+D (K) (J)
TOTAL EXPOSURE CURRENT MONTHLY MATURITY DATE LTM NOI/DATE LTM NOI/DSC
P&I
- --------------------------------------------------------------------------------
P81 P74
(F)=(K/J) (G)
CAP RATE ASSIGN *** VALUATION DATE VALUE USING NOI & CAP RATE
- --------------------------------------------------------------------------------
P75
(H)=.92* (I)=(G/E) (H)=.92* (I)=(G/E)
APPRAISAL BPO OR LOSS USING*92% ESTIMATED LOSS USING 92% ESTIMATED
INTERNAM VALUE** APPR. OR BPO (F) RECOVERY% APPR. OR BPO (F) RECOVERY%
- --------------------------------------------------------------------------------
P35 P77 P82 P79
TOTAL APPRAISAL TRANSFER DATE REO PENDING COMMENTS
REDUCTION ACQUISITION RESOLUTION
REALIZED DATE DATE
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT M-6
FORM OF WATCH LIST
Capital Company of America Client Services LLC
Commercial Mortgage Pass-Through Certificates, Series 1998-D7
Servicer Watch List
as of -------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Scheduled Paid
Prospectus Property Loan Thru Maturity LTM*
ID Name Type City State Balance Date Date DSCR Comment/Reason on Watch List
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT M-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
OPERATING STATEMENT ANALYSIS
PROPERTY OVERVIEW
------------------
Prospectus Number 0
------------------
------------------
Scheduled Balance/Paid to Date 0
------------------
----------------------------------------------
Property Name 0
----------------------------------------------
----------------------------------------------
Property Type: 0
----------------------------------------------
----------------------------------------------
Property Address, City, State: 0
----------------------------------------------
------------------
Net Rentable Square Feet: 0
------------------
-----------------------------------
Year Built/ Year Renovated: 0 0
-----------------------------------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------
Year of Operations Underwriting 1997 1998 YTD
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Occupancy Rate * 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Average Rental Income $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
--------------------------------------------------------------------------------------------------
* Occupancy rates are year end or the ending date of the financial statement for the period.
</TABLE>
<TABLE>
<CAPTION>
INCOME: No. of Mos.
-----------
Number of Months
Prior Year Current Year
--------------------------------------------------------------------------------------------------
Period Ended Underwriting 1998
-----------
-----------
Statement Classification Base Line Normalized Normalized Normalized Normalized Variance Variance
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Rental Income $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
Expense Recoveries $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
Other Income $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
-----------
--------------------------------------------------------------------------------------------------
Effective Gross Income $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
Normalized - Full year financial statements that have been reviewed by the underwriter or the
Servicer Servicer will not be expected to "Normalize" YTD numbers
OPERATING EXPENSES:
--------------------------------------------------------------------------------------------------
Real Estate Taxes $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Property Insurance $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Utilities $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
General & Administation $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Repairs and Maintenance $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Management Fees $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Payroll & Benefits Expense $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Advertising & Marketing $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Professional Fees $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Other Expenses $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Ground Rent $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
Total Operating Expenses $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Operating Expense Ratio
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Net Operating Income $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Leasing Commissions $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Tenant Improvements $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Replacement Reserve $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
Other $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
Total Capital Items $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
N.O.I. After Capital Items $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Debt Service (per Servicer) $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
----------------------------------
Cash Flow after Debt Service $0. $0. $0. $0.00 $0. $0.00
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
DSCR: (NOI/Debt Service)
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
DSCR:
(after Reserves\Capital EXP.)
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Source of Financial Data: 0
--------------------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
Notes and Assumptions:
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The years shown above will roll always showing a three year history.
@ Base line operating information is YTD as of:
Income:
Capital Items:
<PAGE>
EXHIBIT M-8
FORM OF NOI ADJUSTMENT WORKSHEET
NOI ADJUSTMENT WORKSHEET for "1998"
PROPERTY OVERVIEW
------------------
Prospectus Number 0
------------------
------------------
Schedule Balance/Paid to Date 0
------------------
----------------------------------------------
Property Name 0
----------------------------------------------
----------------------------------------------
Property Address: 0
----------------------------------------------
------------------
Property Type: 0
------------------
------------------
Net Rentable Square Feet: 0
------------------
-----------------------------------
Year Built/ Year Renovated: 0 0
-----------------------------------
----------------------------------------------
Year of Operations Borrower Adjustment Normalized
----------------------------------------------
----------------------------------------------
Occupancy Rate * 0.00%
----------------------------------------------
----------------------------------------------
Average Rental Income $0.00
----------------------------------------------
* Occupancy rates are year end or the ending
date of the financial statement for the period.
INCOME:
Number of Months Annualized 1998
----------------------------------------------
Borrower
Actual Adjustment Normalized
----------------------------------------------
----------------------------------------------
Rental Income $0. $0. $0.
----------------------------------------------
Expense Recoveries $0. $0. $0.
----------------------------------------------
Other Income $0. $0. $0.
----------------------------------------------
----------------------------------------------
Effective Gross Income $0. $0. $0.
----------------------------------------------
Normalized - Full year financial statements
that have been reviewed by the underwriter or
the Servicer ** Servicer will not be expected
to "Normalize" these YTD numbers
OPERATING EXPENSES:
----------------------------------------------
Real Estate Taxes $0. $0. $0.
----------------------------------------------
Property Insurance $0. $0. $0.
----------------------------------------------
Utilities $0. $0. $0.
----------------------------------------------
General & Administration $0. $0. $0.
----------------------------------------------
Repairs and Maintenance $0. $0. $0.
----------------------------------------------
Management Fees $0. $0. $0.
----------------------------------------------
Payroll & Benefits Expense $0. $0. $0.
----------------------------------------------
Advertising & Marketing $0. $0. $0.
----------------------------------------------
----------------------------------------------
Professional Fees $0. $0. $0.
----------------------------------------------
Other Expenses $0. $0. $0.
----------------------------------------------
Ground Rent $0. $0. $0.
----------------------------------------------
Total Operating Expenses $0. $0. $0.
----------------------------------------------
----------------------------------------------
Operating Expense Ratio
----------------------------------------------
----------------------------------------------
Net Operating Income $0. $0. $0.
----------------------------------------------
----------------------------------------------
Leasing Commissions $0. $0. $0.
----------------------------------------------
Tenant Improvements $0. $0. $0.
----------------------------------------------
Replacement Reserve $0. $0. $0.
----------------------------------------------
Other $0. $0. $0.
----------------------------------------------
Total Capital Items $0. $0. $0.
----------------------------------------------
----------------------------------------------
N.O.I. After Capital Items $0. $0. $0.
----------------------------------------------
----------------------------------------------
Debt Service (per Servicer) $0. $0. $0.
----------------------------------------------
Cash Flow after Debt Service $0. $0. $0.
----------------------------------------------
----------------------------------------------
DSCR: (NOI/Debt Service)
----------------------------------------------
----------------------------------------------
DSCR:
(after Reserves\Capital EXP.)
----------------------------------------------
----------------------------------------------
Source of Financial Data:
----------------------------------------------
(ie. operating statements, financial
statements, tax return, other)
Notes and Assumptions:
- -------------------------------------------------------------------------------
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers
Income:
Expense:
Capital Items:
<PAGE>
EXHIBIT M-9
CSSA 100.1 SET-UP DATA RECORD LAYOUT
Offering
Document NOI At
Transaction Id Group Id Loan Id Loan Id Year Built Securitization
- --------------------------------------------------------------------------------
Appraisal Appraisal Physical
DSCR At Value At Date At Occupancy At
Transaction Id Securitization Securitization Securitization Securitization
- --------------------------------------------------------------------------------
Operating Securitization
Revenue At Expenses At Financials
Transaction Id Securitization Securitization As Of Date Recourse (Y/N)
- --------------------------------------------------------------------------------
Collection
Ground Cross-Collateralized Collection Of Of Other
Transaction Id Lease (Y/N) Loan Grouping Escrows (Y/N) Reserves (Y/N)
- --------------------------------------------------------------------------------
Lien
Position At
Transaction Id Securitization
- --------------------------------
<PAGE>
EXHIBIT M-10
CSSA 100.1 PERIODIC DATA RECORD LAYOUT
P1 P2 P3 P4
TRANSACTION AMRESCO PROSPECTUS
L0ANID ID GROUP ID LOAN ID ID
- --------------------------------------------------------------------------------
P5 P6 P7 P8
DISTRIBUTION CURRENT BEGINNING CURRENT ENDING PAID TO
LOANID DATE SCHED BALANCE SCHED BALANCE DATE
- --------------------------------------------------------------------------------
P9 P10 P11 P12
CURRENT CURRENT MATURITY SERVICE AND
LOANID INDEX RATE NOTE RATE DATE TRUSTEE FEE RATE
- --------------------------------------------------------------------------------
P13 P14 P15 P16
FEE RATE/ FEE RATE/ FEE RATE/ FEE RATE/
LOANID STRIP RATE 1 STRIP RATE 2 STRIP RATE 3 STRIP RATE 4
- --------------------------------------------------------------------------------
P17 P18 P19 P20
FEE RATE/ NET PASS- NEXT NEXT
LOANID STRIP RATE 5 THROUGH RATE INDEX RATE NOTE RATE
- --------------------------------------------------------------------------------
P21 P22 P23 P24
NEXT RATE NEXT PAYMENT SCHEDULED SCHEDULED
LOANID ADJUSTMENT DATE ADJUSTMENT DATE INTEREST AMOUNT PRINCIPAL AMOUNT
- --------------------------------------------------------------------------------
P27
P25 P26 UNSCHEDULED P28
TOTAL SCHEDULED NEG AM/DEFERRED PRINCIPAL OTHER PRINCIPAL
LOANID P & I DUE INTEREST AMOUNT COLLECTIONS ADJUSTMENT
- --------------------------------------------------------------------------------
P30 P31 P32
P29 PREPAYMENT PREPAYMENT LIQUIDATION/
LIQUIDATION/ PENALTY/ INTEREST PREPAYMENT
LOANID PREPAYMENT DATE YLD MAINT REC'D EXCESS (SHORTFALL) CODE
- --------------------------------------------------------------------------------
P33 P34 P35 P36
MOST RECENT MOST RECENT CUMULATIVE ACTUAL
LOANID ASER $ ASER DATE ASER $ BALANCE
- --------------------------------------------------------------------------------
P37 P38 P39
TOTAL P&I TOTAL P&I OTHER EXPENSE P40
ADVANCE ADVANCE ADVANCE STATUS
LOANID OUTSTANDING OUTSTANDING OUTSTANDING OF LOAN
- --------------------------------------------------------------------------------
P41 P42 P43 P44
IN FORECLOSE REO BANKRUPTCY
LOANID BANKRUPTCY DATE DATE DATE
- --------------------------------------------------------------------------------
P45
NET PROCEEDS P46 P47 P48
RECEIVED ON LIQUIDATION REALIZED LOSS DATE OF LAST
LOANID LIQUIDATION EXPENSE TO TRUST MODIFICATION
- --------------------------------------------------------------------------------
P49 P50 P51 P52
MODIFICATION MODIFIED MODIFIED PRECEDING FISCAL
LOANID CODE NOTE RATE PAYMENT RATE YEAR REVENUE
- --------------------------------------------------------------------------------
P55 P56
P53 P54 PRECEDING PRECEDING
PRECEDING FISCAL PRECEDING FISCAL FISCAL YEAR FISCAL YEAR
LOANID YEAR EXPENSES YEAR NOI DEBT SVC AMT. DSCR
- --------------------------------------------------------------------------------
P58 P59 P60
P57 PRECEDING FY SECOND SECOND
PRECEDING FISCAL FINANCIAL PRECEDING PRECEDING
LOANID YR PHYSICAL OCC'Y AS OF DATE FY REVENUE FY EXPENSES
- --------------------------------------------------------------------------------
P61 P62 P63 P64
SECOND SECOND SECOND SEC PRECEDING
PRECEDING PRECEDING PRECEDING FY PHYSICAL
LOANID FY NOI FY DEBT SERVICE FY DSCR OCC'Y
- --------------------------------------------------------------------------------
P65 P66 P67 P68
SEC PRECEDING MOST RECENT MOST RECENT MOST RECENT
FY FIN'L AS FISCAL FISCAL FISCAL
LOANID OF DATE YTD REVENUE YTD EXPENSES YTD NOI
- --------------------------------------------------------------------------------
P69 P70 P71 P72
MOST RECENT MOST RECENT MOST RECENT MOST RECENT
FISCAL YTD FISCAL YTD FISCAL YTD FISCAL YTD
LOANID DEBT SERVICE DSCR PHYS. OCC. START DATE
- --------------------------------------------------------------------------------
P73 P74 P75 P76
MOST RECENT MOST RECENT MOST RECENT WORKOUT
FISCAL YTD APPRAISAL APPRAISAL STATEGY
LOANID END DATE DATE VALUE CODE
- --------------------------------------------------------------------------------
P77 P78 P79 P80
MOST RECENT MOST RECENT DATE ASSET YEAR
SPEC SVC MASTER SVC EXPECTED TO BE LAST
LOANID TRANSFER DATE RETURN DATE RESOLVED RENOVATED
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT M-11
CSSA 100.1 PROPERTY DATA FILE
F1 F2 F3 F4 F5
PROPERTY LOAN TRANSACTION LOAN PROSPECTUS PROPERTY DISTRIBUTION
ID ID ID ID LOAN ID ID DATE
- --------------------------------------------------------------------------------
F6 F7 F8 F9 F10
PROPERTY LOAN CROSS-COLLATERALIZED PROPERTY PROPERTY PROPERTY PROPERTY
ID ID LOAN GROUPING NAME ADDRESS CITY STATE
- --------------------------------------------------------------------------------
F16
F11 F12 F13 F14 F15 NET SQUARE
PROPERTY LOAN PROPERTY PROPERTY PROPERTY YEAR YEAR LAST FEET AT
ID ID ZIP CODE COUNTY TYPE CODE BUILT RENOVATED SECURITIZATION
- --------------------------------------------------------------------------------
F19
F17 ALLOCATED F20
# OF UNITS/ F18 PERCENTAGE CURRENT
PROPERTY LOAN BEDS/ROOMS AT PROPERTY OF LOAN AT ALLOCATED
ID ID SECURITIZATION STATUS SECURITIZATION PERCENTAGE
- --------------------------------------------------------------------------------
F23
F21 F22 OTHER F24 F25
CURRENT GROUND ESCROW/ MOST RECENT MOST RECENT
PROPERTY LOAN ALLOCATED LEASE RESERVE APPRAISAL APPRAISAL
ID ID LOAN AMOUNT (Y/S/N) BALANCES DATE VALUE
-----------------------------------------------------------------------------
F26
DATE ASSET IS F27 F28 F29 F30
PROPERTY LOAN EXPECTED TO BE FORECLOSURE REO OCCUPANCY OCCUPANCY
ID ID RESOLVED DATE DATE % DATE
- --------------------------------------------------------------------------------
F31 F32 F33 F34
DATE LEASE % SQ. FEET % SQ. FEET % SQ. FEET
PROPERTY LOAN ROLLOVER EXPIRING EXPIRING EXPIRING
ID ID REVIEW 1-12 MONTHS 13-24 MONTHS 25-36 MONTHS
- --------------------------------------------------------------------------------
F35 F36 F44
% SQ. FEET % SQ. FEET F43 SECURITIZATION
PROPERTY LOAN EXPIRING EXPIRING FISCAL YEAR FINANCIALS
ID ID 37-48 MONTHS 49-60 MONTHS END MONTH AS OF DATE
- --------------------------------------------------------------------------------
F45 F46 F47 F48
PROPERTY LOAN REVENUE AT EXPENSES AT NOI AT DSCR AT
ID ID SECURITIZATION SECURITIZATION SECURITIZATION SECURITIZATION
- --------------------------------------------------------------------------------
F49 F50 F51
APPRAISAL APPRAISAL PHYSICAL F52
PROPERTY LOAN VALUE AT DATE AT OCCUPANCY AT DATE OF LAST
ID ID SECURITIZATION SECURITIZATION SECURITIZATION INSPECTION
- --------------------------------------------------------------------------------
F57
F53 F54 F55 F56 PRECEDING
PRECEDING FY PRECEDING PRECEDING PRECEDING FISCAL
PROPERTY LOAN FINANCIAL FISCAL YEAR FISCAL YEAR FISCAL YEAR DEBT
ID ID AS OF DATE REVENUE EXPENSES YEAR NOI SERVICE AMT.
- --------------------------------------------------------------------------------
F59
F58 PRECEDING F60 F61 F62
PRECEDING FISCAL YEAR SEC PRECEDING SECOND SECOND
PROPERTY LOAN FISCAL PHYSICAL FY FINANCIAL PRECEDING PRECEDING
ID ID YEAR DSCR OCCUPANCY AS OF DATE FY REVENUE FY EXPENSES
- --------------------------------------------------------------------------------
F64
F63 SECOND F65 F66
SECOND PRECEDING SECOND SEC PRECEDING
PROPERTY LOAN PRECEDING FY DEBT PRECEDING FY PHYSICAL
ID ID FY NOI SERVICE FY DSCR OCCUPANCY
- ----------------------------------------------------------------------
<PAGE>
EXHIBIT N
THE CAPITAL COMPANY OF AMERICA CLIENT SERVICES LLC
600 East Las Colinas Boulevard
Suite 1300
Irving Texas 75039
Dated _____________ __, 19__
AMRESCO Services, L.P.
235 Peachtree Street
Suite 900
Atlanta, Georgia 30303
RE: Commercial Mortgage Pass-Through Certificates Series 1998-D7
This is the Notice and Acknowledgment referred to in Section 3.33(b) of the
Pooling and Servicing Agreement, dated as of September 11, 1998 by and among
CAPCO America Securitization Corporation, as depositor, The Capital Company of
America Client Services LLC, as servicer, AMRESCO Services, L.P., as co-servicer
and operating advisor, AMRESCO Management, Inc., as special servicer, LaSalle
National Bank, as trustee and ABN AMRO Bank N.V., as fiscal agent. Capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Agreement.
The Servicer hereby notifies the Operating Advisor that
[reference loan(s) that have become or cease having the status of Affiliated
Mortgage Loan(s)] is/is no longer an Affiliated Mortgage Loan subject to the
Agreement.
From and after the receipt of this Notice and Acknowledgment, all directions,
consents or approvals required under the Pooling Agreement with respect to the
above-referenced loan(s) shall be made only by the Operating Advisor in
accordance with Section 3.33(b) of the Pooling Agreement.
<PAGE>
EXHIBIT O
FORM OF OPERATING ADVISOR APPROVAL
[Date]
The Capital Company of America Client Services, LLC
600 East Las Colinas Blvd., Suite 1300
Irving, Texas 75039
Attn. [Asset Manager]
Re: Borrower: [Borrower=s legal name]
Loan Number: [loan number]
Case Memorandum dated XX proposing [lease consents, assumptions, waivers,
execution of SNDA=s, etc.]
Dear Capital Company of America Client Services, LLC,
AMRESCO Services, LP, as Operating Advisor, is providing this Operating Advisor
Certificate in accordance with Section 3.33(d) of the Pooling and Servicing
Agreement dated September 11, 1998 for Commercial Mortgage Pass-Through
Certificate Series 1998-D7 (the APSA@). Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the PSA.
As Operating Advisor, the action proposed in the above referenced Case
Memorandum is deemed:
Approved
Approved with the following conditions:
________________________________________________________________________________
Disapproved for the following reasons:
________________________________________________________________________________
AMRESCO Services, LP, as Operating Advisor
By: ______________________________________
Its: _____________________________________
Effective Date: __________________________
<PAGE>
EXHIBIT P
AFFILIATED MORTGAGE LOANS
Monte Sano Apts. Loan
Hiawassee Oaks Apartments Loan
