<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NUMBER ONE TO FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: June 29, 1998
(Date of earliest event reported)
MORTGAGE CAPITAL FUNDING, INC.
------------------------------
(Sponsor)
(Issuer in Respect of
Multifamily/Commercial Mortgage Pass-Through Certificates, Series 1998-MC2)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Delaware 333-24489 13-3408716
------------------------ ----------- ------------------
(STATE OR OTHER JURIS- (COMMISSION (I.R.S. EMPLOYER
DICTION OF ORGANIZATION) FILE NO.) IDENTIFICATION NO.)
399 Park Avenue, New York, New York 10043
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's Telephone Number, including area code (212) 559-6899
--------------
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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The definitions of the "Trustee Fee Rate" and "Master Servicing Fee Rate" set
forth in the Pooling and Servicing Agreement attached as an exhibit to the Form
8-K (as originally filed on July 13, 1998) contained errors in the relevant
number of basis points set forth therein. This Amendment Number One is filed to
cause such definitions of "Trustee Fee Rate" and "Master Servicing Fee Rate" to
reflect accurately the corresponding terms of the Pooling and Servicing
Agreement as executed.
Item 2. Acquisition or Disposition of Assets
Description of the Certificates and the Mortgage Pool
On June 29, 1998, a single series of certificates, entitled Mortgage
Capital Funding, Inc., Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1998-MC2 (the "Certificates"), was issued pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement"),
attached hereto as Exhibit 4.1, dated as of June 1, 1998, among Mortgage
Capital Funding, Inc., as Sponsor (the "Sponsor"), Citicorp Real Estate, Inc.,
as Mortgage Loan Seller ("CREI"), Morgan Guaranty Trust Company of New York, as
Additional Warranting Party, CRIIMI MAE Services Limited Partnership, as Master
Servicer and Special Servicer, and State Street Bank and Trust Company, as
Trustee and REMIC Administrator. The Certificates consist of sixteen classes
identified as the "Class X Certificates", the "Class A-1 Certificates", the
"Class A-2 Certificates", the "Class B Certificates", the "Class C
Certificates", the "Class D Certificates", the "Class E Certificates", the
"Class F Certificates", the "Class G Certificates", the "Class H Certificates",
the "Class J Certificates", the "Class K Certificates", the "Class L
Certificates", the "Class R-I Certificates", the "Class R-II Certificates" and
the "Class R-III Certificates", respectively, and were issued in exchange for,
and evidence the entire beneficial ownership interest in, the assets of a trust
fund (the "Trust Fund") consisting primarily of a segregated pool (the
"Mortgage Pool") of 147 multifamily and commercial mortgage loans (the
"Mortgage Loans"), having, as of the close of business on June 1, 1998 (the
"Cut-off Date"), an aggregate principal balance of $1,009,500,069 (the "Initial
Pool Balance"), after taking into account all payments of principal due on the
Mortgage Loans on or before such date, whether or not received. The Sponsor
acquired the Trust Fund assets from CREI, an affiliate of the Sponsor, pursuant
to a mortgage loan purchase agreement between the Sponsor and CREI. The Sponsor
sold the Class X, Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates to Citibank, N.A. and J.P. Morgan Securities Inc., as underwriters
(the "Underwriters"), pursuant to an underwriting agreement (the "Underwriting
Agreement") dated June 25, 1998.
The Class A-1 Certificates have an initial stated principal balance (a
"Certificate Balance") of $205,079,000. The Class A-2 Certificates have an
initial Certificate Balance of $514,190,000. The Class B Certificates have an
initial Certificate Balance of $47,951,000. The Class C Certificates have an
initial Certificate Balance of $58,046,000. The Class D Certificates have an
initial Certificate Balance of $60,570,000. The Class E Certificates have an
initial Certificate Balance of $37,856,000. The Class X Certificates have an
initial notional amount of $1,009,500,069.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
2
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Item 7. Financial Statements and Exhibits
(a) Not applicable
(b) Not applicable
(c) Exhibits
Exhibit No. Description
- ----------- -----------
4.1 Pooling and Servicing Agreement dated as of June 1, 1998,
among Mortgage Capital Funding, Inc., as Sponsor, Citicorp
Real Estate, Inc., as Mortgage Loan Seller, Morgan Guaranty
Trust Company of New York, as Additional Warranting Party,
CRIIMI MAE Services Limited Partnership, as Master Servicer
and Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MORTGAGE CAPITAL FUNDING, INC.
(Registrant)
By: /s/ Richard L. Jarocki, Jr.
---------------------------
Richard L. Jarocki, Jr.
President
Dated: June 29, 1998
4
<PAGE>
===============================================================================
MORTGAGE CAPITAL FUNDING, INC.,
Sponsor,
CITICORP REAL ESTATE, INC.,
Mortgage Loan Seller,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Additional Warranting Party,
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
Master Servicer and Special Servicer
and
STATE STREET BANK AND TRUST COMPANY
Trustee and REMIC Administrator
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1998
----------------------------------------
$1,009,500,069
Multifamily/Commercial Mortgage Pass-Through Certificates
Series 1998-MC2
===============================================================================
<PAGE>
TABLE OF CONTENTS
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Section Page
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF
THE MORTGAGE POOL AND THE CERTIFICATES
1.01. Defined Terms.......................................................10
1.02. Certain Calculations in Respect of the Mortgage Pool................58
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01. Conveyance of Mortgage Loans........................................61
2.02. Acceptance of REMIC I by Trustee....................................65
2.03. Mortgage Loan Seller's and Additional Warranting Party's
Repurchase of Mortgage Loans for Document Defects
and Certain Breaches of Representations and Warranties..............67
2.04. Representations and Warranties of the Sponsor.......................69
2.05. Representations and Warranties of the Mortgage Loan Seller and
the Additional Warranting Party.....................................70
2.06. Representations and Warranties of the Master Servicer...............84
2.07. Representations and Warranties of the Trustee.......................86
2.08. Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...........................................87
2.09. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.............................................88
2.10. Issuance of the Class R-II Certificates; Creation of the
REMIC II Regular Interests..........................................88
2.11. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by the Trustee............................................88
2.12. Issuance of the REMIC III Certificates..............................88
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
3.01. Administration of the Mortgage Loans................................90
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Section Page
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3.02. Collection of Mortgage Loan Payments................................91
3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts................................92
3.04. Collection Account and Distribution Account.........................93
3.05. Permitted Withdrawals From the Collection Account and the
Distribution Account................................................96
3.06. Investment of Funds in the Collection Account, the Interest
Reserve Account, the REO Account, the Servicing Accounts and
the Reserve Accounts...............................................101
3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage..................................................103
3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing..............................................106
3.09. Realization Upon Defaulted Mortgage Loans..........................108
3.10. Trustee to Cooperate; Release of Mortgage Files....................112
3.11. Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances...............................113
3.12. Inspections; Collection of Financial Statements....................118
3.13. Annual Statement as to Compliance..................................120
3.14. Reports by Independent Public Accountants..........................120
3.15. Access to Certain Information......................................121
3.16. Title to REO Property; REO Account.................................121
3.17. Management of REO Property.........................................123
3.18. Sale of Mortgage Loans and REO Properties..........................126
3.19. Additional Obligations of the Master Servicer and the
Special Servicer...................................................129
3.20. Modifications, Waivers, Amendments and Consents....................132
3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping...........................................137
3.22. Sub-Servicing Agreements...........................................138
3.23. Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.........................141
3.24. Confidentiality....................................................142
3.25. No Solicitation of Prepayments.....................................142
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
4.01. Distributions on the Certificates..................................144
4.02. Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer...........................152
4.03. P&I Advances.......................................................159
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Section Page
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4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses to the Sequential Pay Certificates........................162
4.05. Deemed Distributions on, and Allocations of Realized Losses and
Additional Trust Fund Expenses to, the REMIC I Regular Interests
and REMIC II Regular Interests.....................................162
ARTICLE V
THE CERTIFICATES
5.01. The Certificates...................................................165
5.02. Registration of Transfer and Exchange of Certificates..............166
5.03. Book-Entry Certificates............................................172
5.04. Mutilated, Destroyed, Lost or Stolen Certificates..................174
5.05. Persons Deemed Owners..............................................174
5.06. Certification by Certificate Owners................................174
ARTICLE VI
THE SPONSOR, THE MORTGAGE LOAN SELLER,
THE ADDITIONAL WARRANTING PARTY, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01. Liability of the Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special
Servicer and the REMIC Administrator...............................176
6.02. Merger, Consolidation or Conversion of the Sponsor, the
Mortgage Loan Seller, the Additional Warranting Party, the
Master Servicer, the Special Servicer or the REMIC
Administrator......................................................176
6.03. Limitation on Liability of the Sponsor, the Master Servicer,
the Special Servicer, the REMIC Administrator and Others...........177
6.04. Master Servicer, Special Servicer and REMIC Administrator
Not to Resign......................................................178
6.05. Rights of the Sponsor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator......................................................179
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Section Page
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ARTICLE VII
DEFAULT
7.01. Events of Default..................................................180
7.02. Trustee to Act; Appointment of Successor...........................183
7.03. Notification to Certificateholders.................................185
7.04. Waiver of Events of Default........................................185
7.05. Additional Remedies of Trustee Upon Event of Default...............185
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01. Duties of Trustee..................................................187
8.02. Certain Matters Affecting the Trustee..............................188
8.03. Trustee Not Liable for Validity or Sufficiency of Certificates
or Mortgage Loans..................................................189
8.04. Trustee May Own Certificates.......................................190
8.05. Fees of Trustee; Indemnification of Trustee........................190
8.06. Eligibility Requirements for Trustee...............................191
8.07. Resignation and Removal of the Trustee.............................191
8.08. Successor Trustee..................................................192
8.09. Merger or Consolidation of Trustee.................................193
8.10. Appointment of Co-Trustee or Separate Trustee......................193
8.11. Appointment of Custodians..........................................194
8.12. Access to Certain Information......................................195
8.13. Filings with the Securities and Exchange Commission................196
8.14. Massachusetts Filings..............................................197
ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans..............................................................198
9.02. Additional Termination Requirements................................200
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Section Page
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01. REMIC Administration...............................................201
10.02. Sponsor, Master Servicer, Special Servicer and Trustee to
Cooperate with REMIC Administrator.................................204
10.03. Fees of the REMIC Administrator....................................205
10.04. Use of Agents......................................................205
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment..........................................................206
11.02. Recordation of Agreement; Counterparts.............................207
11.03. Limitation on Rights of Certificateholders.........................208
11.04. Governing Law......................................................209
11.05. Notices............................................................209
11.06. Severability of Provisions.........................................209
11.07. Successors and Assigns; Beneficiaries..............................210
11.08. Article and Section Headings.......................................210
11.09. Notices to the Rating Agencies.....................................210
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SCHEDULES AND EXHIBITS
- ----------------------
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Schedule of Exceptions to Mortgage File Delivery
EXHIBIT A-1 Form of Class X Certificate
EXHIBIT A-2 Form of Class [A-1], [A-2] Certificate
EXHIBIT A-3 Form of Class [B], [C], [D], [E] Certificate
EXHIBIT A-4 Form of Class [F], [G], [H], [J], [K], [L] Certificate
EXHIBIT A-5 Form of Class [R-I], [R-II], [R-III] Certificate
EXHIBIT B-1 Form of Transferor Certificate Pursuant to Section 5.02(b)
EXHIBIT B-2 Form I of Transferee Certificate Pursuant to Section 5.02(b)
for Transfers of Definitive Certificates [For QIBs]
EXHIBIT B-3 Form II of Transferee Certificate Pursuant to Section 5.02(b) for
Transfers of Definitive Certificates [For Institutional
Accredited Investors]
EXHIBIT B-4 Form I of Transferee Certificate Pursuant to Section
5.02(b) for Transfers of Interests in Book-Entry Certificates
[For QIBs]
EXHIBIT B-5 Form II of Transferee Certificate Pursuant to Section 5.02(b) for
Transfers of Interests in Book-Entry Certificates [For
Institutional Accredited Investors]
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to Section
5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section 5.02(d)(i)(D)
EXHIBIT D-1 Form of Transferee Certificate in Connection with ERISA
(Definitive Certificates)
EXHIBIT D-2 Form of Transferee Certificate in Connection with ERISA
(Book-Entry Certificates)
EXHIBIT E Request for Release
EXHIBIT F Form of Distribution Date Statement
EXHIBIT G-1 Form of Delinquent Loan Status Report
EXHIBIT G-2 Form of Historical Loan Modification Report
EXHIBIT G-3 Form of Historical Loss Report
EXHIBIT G-4 Form of REO Status Report
EXHIBIT G-5 Form of Special Servicer Loan Status Report
EXHIBIT G-6 Form of Operating Statement Analysis Report
EXHIBIT G-7 Form of Comparative Financial Status Report
EXHIBIT G-8 Form of Watchlist
EXHIBIT H-1 CSSA Standard Reporting Set-Up Layout
EXHIBIT H-2 CSSA Loan Periodic Update File
EXHIBIT H-3 CSSA Standard Property Data File
-vi-
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of June 1, 1998, among MORTGAGE CAPITAL FUNDING, INC., as Sponsor,
CITICORP REAL ESTATE, INC. as Mortgage Loan Seller, MORGAN GUARANTY TRUST
COMPANY OF NEW YORK as Additional Warranting Party, CRIIMI MAE SERVICES LIMITED
PARTNERSHIP, as Master Servicer and as Special Servicer, and STATE STREET BANK
AND TRUST COMPANY, as Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
The Sponsor intends to sell Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I".
The Class R-I Certificates will represent the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions under federal income
tax law. Each of the REMIC I Regular Interests will relate to a specific
Mortgage Loan. Each such REMIC I Regular Interest will have: (i) subject to
adjustment as provided herein, a REMIC I Remittance Rate equal to the Net
Mortgage Rate as of the Closing Date of the related Mortgage Loan; and (ii) an
initial Uncertificated Principal Balance equal to the Cut-off Date Balance of
the related Mortgage Loan. The Legal Final Distribution Date for each REMIC I
Regular Interest is the first Distribution Date following such Mortgage Loan's
Stated Maturity Date. None of the REMIC I Regular Interests will be
certificated.
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC II." The Class R-II Certificates will represent the
sole class of "residual interests" in REMIC II for purposes of the REMIC
Provisions under federal income tax law. The following table sets forth the
designation, the REMIC II Remittance Rate and the initial Uncertificated
Principal Balance for each of the REMIC II Regular Interests. The Legal Final
Distribution Date for each REMIC II Regular Interest is the first Distribution
Date following the Stated Maturity Date of the Mortgage Loan that has, as of
the Closing Date, the latest Stated Maturity Date. None of the REMIC II Regular
Interests will be certificated.
<PAGE>
Initial
REMIC II Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1 Variable (1) $ 205,079,000
A-2 Variable (1) $ 514,190,000
B Variable (1) $ 47,951,000
C Variable (1) $ 58,046,000
D Variable (1) $ 60,570,000
E Variable (1) $ 37,856,000
F Variable (1) $ 12,619,000
G Variable (1) $ 25,238,000
H Variable (1) $ 7,571,000
J Variable (1) $ 15,143,000
K Variable (1) $ 7,571,000
L Variable (1) $ 17,666,069
---------------
(1) Calculated in accordance with the definition of "REMIC II
Remittance Rate".
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC III". The Class R-III Certificates will represent the
sole class of "residual interests" in REMIC III for purposes of the REMIC
Provisions under federal income tax law. The following table irrevocably sets
forth the designation, the Pass-Through Rate and the initial Class Principal
Balance for each of the Classes of REMIC III Regular Certificates. The Legal
Final Distribution Date for each Class of REMIC III Regular Certificates is the
first Distribution Date following the Stated Maturity Date of the Mortgage Loan
that has, as of the Closing Date, the latest Stated Maturity Date.
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Initial Class
Designation Pass-Through Rate Principal Balance
- ----------- ----------------- -----------------
Class A-1 6.325% per annum $ 205,079,000
Class A-2 6.423% per annum $ 514,190,000
Class X Variable (1) N/A(2)
Class B 6.549% per annum $ 47,951,000
Class C 6.726% per annum $ 58,046,000
Class D Variable (1) $ 60,570,000
Class E Variable (1) $ 37,856,000
Class F Variable (1) $ 12,619,000
Class G Variable (1) $ 25,238,000
Class H Variable (1) $ 7,571,000
Class J 6.000% per annum $ 15,143,000
Class K 6.000% per annum $ 7,571,000
Class L 6.000% per annum $ 17,666,069
----------------
(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) The Class X Certificates will not have a Class Principal Balance;
rather, such Class of Certificates will accrue interest as provided
herein on a Class Notional Amount that is, as of any date of
determination, equal to the then aggregate Uncertificated Principal
Balance of all the REMIC II Regular Interests.
In consideration of the mutual agreements herein contained, the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator agree
as follows:
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<PAGE>
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF
THE MORTGAGE POOL AND THE CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"Accrued Certificate Interest": With respect to any Class of REMIC III
Regular Certificates, for any Distribution Date, one month's interest
(calculated on the basis of a 30/360 Basis) at the Pass-Through Rate applicable
to such Class of Certificates for such Distribution Date, accrued on the
related Class Principal Balance or Class Notional Amount, as the case may be,
of such Class of Certificates outstanding immediately prior to such
Distribution Date. The Accrued Certificate Interest in respect of any Class of
REMIC III Regular Certificates for any Distribution Date shall be deemed to
have accrued during the related Interest Accrual Period.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust within the
meaning of Treasury Regulation Section 1.856-6(b)(1), which is the first day on
which the Trust is treated as the owner of such REO Property for federal income
tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis of
the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on
an Actual/360 Basis.
"Additional Trust Fund Expense": Any expense (including, without
limitation, Advance Interest) incurred or shortfall experienced with respect to
the Trust Fund and not otherwise included in the calculation of a Realized
Loss, that would result in the REMIC III Regular Certificateholders' receiving
less than the full amount of principal and/or Distributable Certificate
Interest to which they are entitled on any Distribution Date.
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<PAGE>
"Additional Warranting Party": Morgan Guaranty Trust Company of New
York or its successor in interest.
"Additional Yield Amount": As defined in Section 4.01(a).
"Adjusted REMIC II Remittance Rate": With respect to REMIC II Regular
Interest A-1, 6.325% per annum; with respect to REMIC II Regular Interest A-2,
6.423% per annum; with respect to REMIC II Regular Interest B, 6.549% per
annum; with respect to REMIC II Regular Interest C, 6.726% per annum; with
respect to REMIC II Regular Interest D, the REMIC II Remittance Rate in respect
of REMIC II Regular Interest D for such Distribution Date, capped at 7.091% per
annum; with respect to REMIC II Regular Interest E, the REMIC II Remittance
Rate in respect of REMIC II Regular Interest E for such Distribution Date; with
respect to REMIC II Regular Interest F, the REMIC II Remittance Rate in respect
of REMIC II Regular Interest F for such Distribution Date; with respect to
REMIC II Regular Interest G, the REMIC II Remittance Rate in respect of REMIC
II Regular Interest G for such Distribution Date; with respect to REMIC II
Regular Interest H, the REMIC II Remittance Rate in respect of REMIC II Regular
Interest H for such Distribution Date; with respect to REMIC II Regular
Interest J, 6.000% per annum; with respect to REMIC II Regular Interest K,
6.000% per annum; and with respect to REMIC II Regular Interest L, 6.000% per
annum.
"Administrative Fee Rate": With respect to each Mortgage Loan (and any
successor REO Loan), the per annum rate specified as such in the Mortgage Loan
Schedule.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer , the Special Servicer or
the Trustee, as the case may be, all in accordance with Section 3.11(f) or
Section 4.03(d), as applicable.
"Adverse REMIC Event": With respect to each of REMIC I, REMIC II and
REMIC III, either (i) the endangerment of the status of such REMIC as a REMIC
or (ii) except as permitted by Section 3.17(a), the imposition of a tax upon
such REMIC or any of its assets or transactions (including, without limitation,
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on certain contributions set forth in Section 860G(d) of the Code).
"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 the meanings correlative to the foregoing.
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<PAGE>
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"A.M. Best": A.M. Best Company or its successor in interest
"Anticipated Repayment Date": With respect to any Hyper-Amortization
Loan, the date specified on the related Mortgage Note, as of which Excess
Interest shall begin to accrue on such Mortgage Loan, which date is prior to
the Stated Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of the State of New York, (b) the laws of the
states in which the Corporate Trust Office of the Trustee and the Primary
Servicing Offices of the Master Servicer and the Special Servicer are located,
(c) the laws of the states in which any Mortgage Loan documents are held and/or
any REO Properties are located, (d) such other state and local law whose
applicability shall have been brought to the attention of the REMIC
Administrator by either (i) an Opinion of Counsel delivered to it or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state law, and (e) such other state or local law as to which the REMIC
Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property as
to which an appraisal is required to be performed pursuant to the terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of the date of
such appraisal of $1,000,000 or less, a limited appraisal and a summary report)
that indicates the "market value" of the subject property, as defined in 12
C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of (a) the date on which the most recent Appraisal that meets the
requirements of Section 3.19(b) in respect of such Required Appraisal Loan, was
obtained by the Master Servicer or the Special Servicer, as the case may be,
and (b) the earliest of the relevant dates in respect of such Required
Appraisal Loan specified in the first sentence of Section 3.19(b) hereof) equal
to the excess, if any, of (x) the sum of (i) the Stated Principal Balance of
such Required Appraisal Loan, (ii) to the extent not previously advanced by or
on behalf of the Master Servicer or the Trustee, all accrued and unpaid
interest (excluding, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, Excess Interest) on such Required Appraisal Loan
through the most recent Due Date prior to such Determination Date at a per
annum rate equal to the sum of the related Net Mortgage Rate and the Trustee
Fee Rate, (iii) all accrued but unpaid Master Servicing Fees and Special
Servicing Fees in respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the Special
Servicer or the Trustee in respect of such Required Appraisal Loan, together
with all unpaid Advance Interest accrued on such Advances, and (v) all
currently due but unpaid real estate taxes and assessments, insurance premiums
and, if applicable, ground rents in respect of the related Mortgaged Property
or REO Property (net of any Escrow Payments or other reserves held by the
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Master Servicer or the Special Servicer with respect to any such item), over
(y) 90% of an amount equal to (i) the Appraised Value of the related Mortgaged
Property or REO Property, as applicable, as determined by the most recent
relevant Appraisal acceptable for purposes of Section 3.19(b) hereof, net of
(ii) the amount of any obligations secured by liens on such property (other
than in respect of items described in clause (x)(v) above) that are prior to
the lien of the Required Appraisal Loan. Notwithstanding the foregoing, if an
Appraisal is required to be obtained pursuant to Section 3.19(b) but has not
been obtained within the 30-day period contemplated by such section, then until
the date such Appraisal is obtained the "Appraisal Reduction Amount" for the
subject Required Appraisal Loan will be deemed to equal 30% of the Stated
Principal Balance of such Required Appraisal Loan; provided that upon receipt
of an Appraisal acceptable for purposes of Section 3.19(b) hereof, the
Appraisal Reduction Amount for such Required Appraisal Loan will be
recalculated in accordance with the preceding sentence.
"Appraised Value": As of any date of determination, the appraised
value of a Mortgaged Property based upon the most recent Appraisal obtained
pursuant to this Agreement.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits, or similar document or instrument
executed by the Mortgagor, 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.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
for its Stated Maturity Date (provided that such Mortgage Loan has not been
paid in full, and no other Liquidation Event has occurred in respect thereof,
on or before the end of the Collection Period in which such Stated Maturity
Date occurs) and for any subsequent Due Date therefor as of which such Mortgage
Loan remains outstanding and part of the Trust Fund, if no Monthly Payment
(other than a delinquent Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the amount that would have been due
in respect of such Mortgage Loan on such Due Date if it had been required to
continue to accrue interest (exclusive, in the case of a Hyper-Amortization
Loan after its Anticipated Repayment Date, of Excess Interest) in accordance
with its terms, and to pay principal in accordance with the amortization
schedule (if any), in effect immediately prior to, and without regard to the
occurrence of, its most recent scheduled maturity date (as such terms and
amortization schedule may have been modified, and such maturity date may have
been extended, in connection with a bankruptcy, insolvency or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20). With respect to any REO Loan, for
any Due Date therefor as of which the related REO Property remains part of the
Trust Fund, the scheduled monthly payment of principal and/or interest deemed
to be due in respect thereof on such Due Date equal to the Monthly Payment that
was due (or, in the case of a Balloon Mortgage Loan described in the preceding
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sentence of this definition, the Assumed Monthly Payment that was deemed due)
in respect of the related Mortgage Loan on the last Due Date prior to its
becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the balance on deposit in the Distribution Account
as of 11:30 a.m. (New York City time) on such Distribution Date (or such later
time on such date as of which distributions are made on the Certificates),
including, without limitation, if and to the extent on deposit therein as of
such time, the Master Servicer Remittance Amount for the related Master
Servicer Remittance Date, any P&I Advances made by the Master Servicer or the
Trustee to cover uncollected Monthly Payments due and/or Assumed Monthly
Payments deemed due during the related Collection Period, any payments made by
the Master Servicer to cover Prepayment Interest Shortfalls incurred during the
related Collection Period and, if such Distribution Date occurs during March of
any year, the aggregate of the Interest Reserve Amounts transferred from the
Interest Reserve Account to the Distribution Account in respect of the Interest
Reserve Loans for distribution on such Distribution Date, net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that
are due on a Due Date following the end of the related Collection Period, (ii)
any payments of principal (including, without limitation, Principal
Prepayments) and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period, (iii) Prepayment Premiums, (iv)
any amounts payable or reimbursable to any Person from the Distribution Account
pursuant to any of clauses (ii) through (vi) of Section 3.05(b), and (v) any
amounts deposited in the Distribution Account in error; provided that the
Available Distribution Amount for the Final Distribution Date shall be
calculated without regard to clauses (b)(i) and (b)(ii) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date provides
for an amortization schedule extending beyond its Stated Maturity Date and as
to which, in accordance with such terms, the Monthly Payment due on its Stated
Maturity Date is at least two times larger than the Monthly Payment due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Stated Maturity Date
of such Mortgage Loan.
"Bank": As defined in Section 2.07.
"Base Prospectus": That certain prospectus dated June 17, 1998,
relating to trust funds established by the Sponsor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Bloomberg": As defined in Section 4.02(a).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
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"Brunswig Square Office Building Loan": The Mortgage Loan identified
on the Mortgage Loan Schedule by control number J007 and property name Brunswig
Square Office Building.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York and the cities in which the
Primary Servicing Offices of the Master Servicer and Special Servicer and the
Corporate Trust Office of the Trustee are located, are authorized or obligated
by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Sponsor's Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1998-MC2 as executed by the Trustee
and authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor": With respect to any Class of REMIC III Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues interest, which, as of any date of determination, is equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class Notional Amount of the Class X Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then-outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
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"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Sponsor, the Mortgage
Loan Seller, the Additional Warranting Party, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Trustee or any Affiliate of any of
them shall be deemed not to be outstanding, and the Voting Rights to which any
of them is entitled shall not be taken into account in determining whether the
requisite percentage of Voting Rights necessary to effect any such consent,
approval or waiver has been obtained, except as otherwise provided in Sections
7.04 and 11.01 or except in connection with the Controlling Class exercising
its rights under Section 3.23, or unless such Persons collectively own an
entire Class of Certificates and only the Holders of such Class of Certificates
are entitled to grant such consent, approval or waiver. The Certificate
Registrar shall be entitled to request and rely upon a certificate of the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the case may be, in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate
Owners as they may indirectly exercise such rights through the Depository and
the Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder"
or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1 or Class A-2
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
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"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional amount
on which the Class X Certificates collectively accrue interest equal to the
aggregate of the Uncertificated Principal Balances of all the REMIC II Regular
Interests outstanding from time to time.
"Class Principal Balance": The aggregate principal amount of any Class
of Sequential Pay Certificates outstanding as of any date of determination. As
of the Closing Date, the Class Principal Balance of each such Class of
Certificates shall equal the Initial Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each Class of the Sequential
Pay Certificates shall be permanently reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01(a) and, if and to the extent appropriate, shall be further
permanently reduced on such Distribution Date as provided in Section 4.04.
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"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class
R-III" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing the sole class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class X Portion": With respect to the Uncertificated Accrued Interest
in respect of any REMIC II Regular Interest for any Distribution Date, that
portion thereof that is equal to the product of (i) the entire amount of such
Uncertificated Accrued Interest, multiplied by (ii) a fraction (not less than
zero or greater than one), the numerator of which is the excess, if any, of the
REMIC II Remittance Rate in respect of such REMIC II Regular Interest for such
Distribution Date, over the Adjusted REMIC II Remittance Rate in respect of
such REMIC II Regular Interest for such Distribution Date, and the denominator
of which is the REMIC II Remittance Rate in respect of such REMIC II Regular
Interest for such Distribution Date; and, with respect to the Uncertificated
Distributable Interest in respect of any REMIC II Regular Interest for any
Distribution Date, that portion thereof that is equal to the Class X Portion of
the Uncertificated Accrued Interest in respect of such REMIC II Regular
Interest for such Distribution Date, reduced (to not less than zero) by that
portion, if any, of the Net Aggregate Prepayment Interest Shortfall, if any,
for such Distribution Date that was deemed allocated to such REMIC II Regular
Interest in accordance with the last sentence of the definition of
"Uncertificated Distributable Interest".
"Closing Date": June 29, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "CRIIMI MAE
Services Limited Partnership [or the name of any successor Master Servicer], as
Master Servicer, in trust for the registered holders of Mortgage Capital
Funding, Inc., Multifamily/Commercial Mortgage Pass-Through Certificates,
Series 1998-MC2".
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"Collection Period": With respect to any Distribution Date, the period
commencing immediately following the Determination Date in the calendar month
preceding the month in which such Distribution Date occurs (or, in the case of
the initial Distribution Date, commencing immediately following the Cut-off
Date) and ending on and including the Determination Date in the calendar month
in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report containing
substantially the information set forth in Exhibit G-7 hereto, setting forth,
among other things, the occupancy and debt service coverage ratio for each
Mortgage Loan or related Mortgaged Property, as applicable, as of the date of
the latest financial information (covering no less than 12 months) available
immediately preceding the preparation of such report and the revenue and net
operating income for each of the following three periods (to the extent such
information is in the Master Servicer's or the Special Servicer's possession):
(i) the most current available year-to-date, (ii) each of the previous two full
fiscal years stated separately; and (iii) the "base year" (representing the
original analysis of information used as of the Cut-off Date).
"Confidential Information": As defined in Section 3.24.
"Controlling Class": As of any date of determination, the outstanding
Class of Sequential Pay Certificates with the lowest Payment Priority (the
Class A Certificates being treated as a single Class for this purpose) that has
a then-outstanding Class Principal Balance at least equal to 25% of the Initial
Class Principal Balance thereof (or, if no Class of Sequential Pay Certificates
has a then-outstanding Class Principal Balance at least equal to 25% of the
Initial Class Principal Balance thereof, then the "Controlling Class" shall be
the outstanding Class of Sequential Pay Certificates with the then largest
outstanding Class Principal Balance).
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at Two International Place, 5th
Floor, Boston, Massachusetts 02110, Attention: Corporate Trust
Department-Mortgage Capital Funding Inc., Series 1998-MC2.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a Specially
Serviced Mortgage Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property).
"Corresponding REMIC II Regular Interest": With respect to any Class
of Sequential Pay Certificates, the REMIC II Regular Interest that has an
alphabetical and, if applicable, numerical designation that is the same as the
alphabetical and, if applicable, numerical Class designation for such Class of
Sequential Pay Certificates.
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"Corresponding Class of Sequential Pay Certificates": With respect to
any REMIC II Regular Interest, the Class of Sequential Pay Certificates that
has an alphabetical and, if applicable, numerical Class designation that is the
same as the alphabetical and, if applicable, numerical designation for such
REMIC II Regular Interest.
"CREI": Citicorp Real Estate, Inc. or its successor in interest.
"CREI Mortgage Loan": Any of the Mortgage Loans, other than Morgan
Guaranty Mortgage Loans. The CREI Mortgage Loans are identified as such on the
Mortgage Loan Schedule under the heading "Loan Contributor".
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is cross-
collateralized and cross-defaulted with one or more other Mortgage Loans.
"CSSA Reports": With respect to the Mortgage Pool, the CSSA Standard
Reporting Set-Up Layout substantially in the form attached hereto as Exhibit
H-1, the CSSA Loan Periodic Update File substantially in the form attached
hereto as Exhibit H-2 and the CSSA Standard Property Data File substantially in
the form attached hereto as Exhibit H-3.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02) equal
to the aggregate (without duplication) of:
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments due or deemed due, as the case
may be, in respect of the Mortgage Loans and any REO Loans for their
respective Due Dates occurring during the related Collection Period.
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related Collection
Period, any payment of principal (exclusive of any Principal Prepayment)
that was made by or on behalf of the related Mortgagor during the related
Collection Period, net of any portion of such payment that represents a
recovery of the principal portion of any Monthly Payment (other than a
Balloon Payment) due, or the principal portion of any Assumed Monthly
Payment deemed due, in respect of such Balloon Mortgage Loan on a Due Date
during or prior to the related Collection Period and not previously
recovered;
(d) all Liquidation Proceeds, Insurance Proceeds and, to the extent
not included in clause (a), clause (b) or clause (c) above, payments or
other amounts received on or in respect of the Mortgage Loans during the
related Collection Period that were identified and applied by the Master
Servicer as recoveries of principal thereof, in each case net of any
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portion of such amounts that represents (i) a recovery of the
principal portion of any Monthly Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Monthly Payment deemed due,
in respect of any such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered or (ii) the
principal portion of a Monthly Payment made by the related Mortgagor during
the related Collection Period that is due subsequent to the end of such
Collection Period; and
(e) all Liquidation Proceeds, Insurance Proceeds and REO Revenues
received on or in respect of any REO Properties during the related
Collection Period that were identified and applied by the Master Servicer
as recoveries of principal of the related REO Loans, in each case net of
any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in respect
of any such REO Loan or the predecessor Mortgage Loan on a Due Date during
or prior to the related Collection Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Sponsor, the Mortgage Loan Seller, the Additional
Warranting Party or an Affiliate of any of them.
"Cut-off Date": June 1, 1998.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recently ended
period of not more than twelve months or less than three months for which
financial statements (whether or not audited) have been received by or on
behalf of the Mortgage Loan Seller (prior to the Closing Date) or the Master
Servicer or Special Servicer (following the Closing Date) (such Net Operating
Income to be annualized if the relevant period is less than twelve months), to
(y) the product of the amount of the Monthly Payment in effect for such
Mortgage Loan as of such date of determination, multiplied by 12.
"Default Charges": Any and all Default Interest and late payment
charges paid or payable, as the context requires, in connection with a default
under a Mortgage Loan or any successor REO Loan.
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"Default Interest": With respect to any Mortgage Loan (or related REO
Loan), any amounts collected thereon, other than late payment charges and
Prepayment Premiums, that represent interest (exclusive, if applicable, of
Excess Interest) in excess of interest accrued on the principal balance of such
Mortgage Loan (or REO Loan) at the related Mortgage Rate, such excess interest
arising out of a default under such Mortgage Loan or otherwise arising out of
the failure by the related Mortgagor to make the Monthly Payment on the related
Due Date even though such failure is not an event of default under the related
Mortgage Note or Mortgage.
"Defaulted Mortgage Loan": Any Specially Serviced Mortgage Loan as to
which a material default has occurred or a default in respect of any payment
thereon is reasonably foreseeable, and which the Special Servicer has
determined, in its reasonable and good faith judgment, will become the subject
of a foreclosure sale or similar proceedings (the basis for which determination
shall be set forth in an Officer's Certificate to be delivered to the Master
Servicer and the Trustee).
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, direct
noncallable government obligations of the United States of America, as are
permitted under the terms of a Mortgage Note or related Mortgage Loan
documents, but only if such obligations or assets constitute "government
securities" under the defeasance rule of the REMIC Provisions.
"Defeasance Loan": Any Mortgage Loan which grants the holder or the
Mortgagor a Defeasance Option.
"Defeasance Option": With respect to any Defeasance Loan, the right of
a Mortgagor, pursuant to the terms of the related Mortgage Note or the
Mortgage, to obtain a release (or the right of the holder of such Mortgage Loan
to condition the release) of the related Mortgaged Property from the lien of
the related Mortgage upon the pledge to the Trustee of Defeasance Collateral.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report or reports setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the last day of the most recently ended calendar month were (i) delinquent
30-59 days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more, (iv)
current but specially serviced, (v) in foreclosure but as to which the related
Mortgaged Property had not become REO Property, or (vi) related to a Mortgaged
Property which had become REO Property, substantially in the form of, and
including such additional information in respect of each such Mortgage Loan as
set forth on, Exhibit G-1 attached hereto.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
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York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the 11th
day of the month in which such Distribution Date occurs, or if such 11th day is
not a Business Day, the Business Day immediately preceding.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than the sale of an REO Property pursuant to Section 3.18(d)),
the performance of any construction work thereon or any use of such REO
Property in a trade or business conducted by REMIC I other than through an
Independent Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to, or funds, repairs or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in conjunction with leasing activity).
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Freddie Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or
(v) any other Person so designated by the REMIC Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a
Residual Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
REMIC III Regular Certificates, for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the
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Net Aggregate Prepayment Interest Shortfall for such Distribution Date
allocated to such Class of Certificates as provided below. The Net Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date shall be
allocated to the respective Classes of REMIC III Regular Certificates on such
Distribution Date as follows: first, to the respective Classes of REMIC III
Regular Certificates (other than the Senior Certificates), sequentially in
reverse alphabetical order of Class designation, in each case up to an amount
equal to the lesser of any remaining unallocated portion of such Net Aggregate
Prepayment Interest Shortfall and any Accrued Certificate Interest in respect
of the particular Class of Certificates for such Distribution Date; and
thereafter, if and to the extent that any portion of such Net Aggregate
Prepayment Interest Shortfall remains unallocated, among the respective Classes
of Senior Certificates, up to, and pro rata in accordance with, the respective
amounts of Accrued Certificate Interest for each such Class of Senior
Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "State Street Bank and Trust
Company [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of Mortgage Capital Funding, Inc., Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1998-MC2".
"Distribution Date": The 18th day of any month, or if such 18th day is
not a Business Day, the Business Day immediately following, commencing in July
1998.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"Dover House Sub-Servicing Agreement": The Sub-Servicing Agreement
between the Master Servicer and Dover House Capital, Inc. entered into as of,
or within 90 days following, the Closing Date.
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of
the month set forth in the related Mortgage Note on which each Monthly Payment
on such Mortgage Loan had been scheduled to be first due; and (iii) any REO
Loan, the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first
due.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "Aa2" by
Moody's and "AA" by Fitch (if then rated by Fitch), if the deposits are to be
held in the account for more than 30 days, or the short-term unsecured debt
obligations of which are rated no
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less than "P-1" by Moody's and "F-1+" by Fitch (if then rated by Fitch), if the
deposits are to be held in the account for 30 days or less, in each case, at
any time funds are on deposit therein, (ii) a segregated trust account or
accounts maintained with the corporate trust department of a federally
chartered depository institution or trust company, including, without
limitation, the Trustee, acting in its fiduciary capacity, (iii) a segregated
trust account or accounts maintained with the corporate trust department of a
state chartered depository institution or trust company, including, without
limitation, the Trustee, acting in its fiduciary capacity and subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 C.F.R. ss. 9.10(b), or (iv) any other account which would not result in
the downgrade, qualification or withdrawal of the rating then assigned by
either Rating Agency to any Class of Certificates (as confirmed in writing by
each Rating Agency).
"Emergency Advance": Any Servicing Advance (whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
request the Master Servicer to make) that must be made within 10 days of the
Special Servicer's becoming aware that it must be made in order to avoid any
material penalty, any material harm to a Mortgaged Property or any other
material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to any Hyper-Amortization Loan after
its Anticipated Repayment Date, all interest accrued thereon at the Excess
Interest Rate, the payment of which interest shall, under the terms of such
Mortgage Loan, be deferred until all interest accrued at the Mortgage Rate (net
of the Excess Interest Rate) and outstanding principal has been paid, together
with all interest, if any, accrued at the related Mortgage Rate on such
deferred interest and compounded monthly.
"Excess Interest Rate": With respect to any Hyper-Amortization Loan
after its Anticipated Repayment Date, the incremental increase in the Mortgage
Rate for such Mortgage Loan resulting from the passage of such Anticipated
Repayment Date.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates other than
the Class A-1 Certificates, Class A-2 Certificates, Class B Certificates, Class
C Certificates, Class D Certificates and Class E Certificates.
"Fannie Mae": The Federal National Mortgage Association or any
successor.
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"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which
any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property and,
accordingly, the related REO Loan (other than a Mortgage Loan or REO Property,
as the case may be, purchased by the Mortgage Loan Seller or the Additional
Warranting Party or an Affiliate of either of them pursuant to Section 2.03, by
the Majority Certificateholder of the Controlling Class pursuant to Section
3.18(b), by the Master Servicer or the Special Servicer pursuant to Section
3.18(c) or by the Master Servicer or the Majority Certificateholder of the
Controlling Class pursuant to Section 9.01) that there has been a recovery of
all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
(including, without limitation, by reason of a sale of such Mortgage Loan or
REO Property pursuant to Section 3.18(d) hereof) that the Special Servicer has
determined, in accordance with the Servicing Standard, exercised without regard
to any obligation of the Master Servicer or Special Servicer to make payments
from its own funds pursuant to Section 3.07(b), will be ultimately recoverable.
"Fitch": Fitch IBCA, Inc. or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Sponsor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Fitch IBCA, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Ground Lease": The ground lease pursuant to which any Mortgagor holds
a leasehold interest in the related Mortgaged Property.
"Group": A group of Mortgage Loans that are cross-collateralized and
cross-defaulted with each other.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("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.
"Historical Loan Modification Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date
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immediately preceding the preparation of such report or reports, have been
modified pursuant to this Agreement (i) during the Collection Period ending on
such Determination Date and (ii) since the Cutoff Date, showing the original
and the revised terms thereof, substantially in the form of, and including such
additional information in respect of each such Mortgage Loan as set forth on,
Exhibit G-2 attached hereto.
"Historical Loss Report": A report or reports setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report or reports, (i) the amount of
Liquidation Proceeds received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, and
(ii) the amount of Realized Losses occurring during such Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan and REO
Property-by-REO Property basis, substantially in the form of, and including
such additional information in respect of each Mortgage Loan and REO Property
as to which a Final Recovery Determination has been made as set forth on,
Exhibit G-3 attached hereto.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203 and 211
of the National Housing Act.
"Hyper-Amortization Loan": A Mortgage Loan that provides for, if such
Mortgage Loan is not paid in full prior to or on its Anticipated Repayment
Date, (i) the accrual of Excess Interest thereon and (ii) the application (in
reduction of the outstanding principal of such Mortgage Loan) of an amount (in
addition to the principal portion of the required Monthly Payment) equal to the
excess (if any) of certain net cash flow from the related Mortgaged Property
over the sum of the related Monthly Payment and certain permitted property
expenses.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Sponsor, the Mortgage Loan
Seller, the Additional Warranting Party, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator and any and all Affiliates
thereof, (ii) does not have any direct financial interest in or any material
indirect financial interest in any of the Sponsor, the Mortgage Loan Seller,
the Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator or any Affiliate thereof, and (iii) is not
connected with the Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Sponsor, the Mortgage Loan
Seller, the Additional Warranting Party, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof, as the
case may be.
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"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by (i)
any Person that owns, directly or indirectly, 35 percent or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class Notional Amount thereof as of the Closing Date
equal to $1,009,500,069.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as set forth below:
Initial Class
Class Principal Balance
----- -----------------
Class A-1 $ 205,079,000
Class A-2 $ 514,190,000
Class B $ 47,951,000
Class C $ 58,046,000
Class D $ 60,570,000
Class E $ 37,856,000
Class F $ 12,619,000
Class G $ 25,238,000
Class H $ 7,571,000
Class J $ 15,143,000
Class K $ 7,571,000
Class L $ 17,666,069
"Initial Pool Balance": The aggregate Cut-off Date Balance of all the
Mortgage Loans included in the Trust Fund as of the Closing Date.
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"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO Property,
any hazard insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or in respect of such REO
Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor, in either
case, in accordance with the Servicing Standard.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II
Regular Interest or any Class of REMIC III Regular Certificates, in each case
consisting of one of the following: (i) a 30/360 Basis ; or (ii) an Actual/360
Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of REMIC III Regular
Certificates, for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Only Certificate": Any Class X Certificate.
"Interest Reserve Account": The segregated account created and
maintained by the Master Servicer pursuant to Section 3.04(c) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "CRIIMI MAE
Services Limited Partnership [or the name of any successor Master Servicer], as
Master Servicer, in trust for the registered holders of Mortgage Capital
Funding, Inc., Multifamily/Commercial Mortgage Pass-Through Certificates,
Series 1998-MC2".
"Interest Reserve Amount": With respect to each Interest Reserve Loan
and each Master Servicer Remittance Date that occurs during February of each
year and during January of each year that is not a leap year, an amount equal
to one-day's interest at the related Net Mortgage Rate accrued on the related
Stated Principal Balance as of the Due Date in the month in which such Master
Servicer Remittance Date occurs (but prior to the application of any amounts
due on such Due Date), to the extent that a Monthly Payment is remitted to the
Trustee in respect thereof for such Due Date on such Master Servicer Remittance
Date or a P&I Advance is made in respect thereof for such Due Date on such
Master Servicer Remittance Date.
"Interest Reserve Loan": Any Actual/360 Mortgage Loan.
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"Interested Person": The Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, any
Holder of a Certificate, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"IRS": The Internal Revenue Service or any successor.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late collections
of the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Mortgage Loan
due or deemed due, as the case may be, for a Due Date in a previous Collection
Period, or for a Due Date coinciding with or preceding the Cut-off Date, and
not previously received or recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the related Mortgage Loan or of an Assumed
Monthly Payment in respect of such REO Loan due or deemed due, as the case may
be, for a Due Date in a previous Collection Period and not previously received
or recovered. The term "Late Collections" shall specifically exclude any
Default Charges.
"Legal Final Distribution Date": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of REMIC III Regular
Certificates, the "latest possible maturity date" thereof, calculated solely
for purposes of satisfying Treasury regulation section 1.860G-1(a)(4)(iii).
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller or the Additional Warranting
Party or any Affiliate of either of them pursuant to Section 2.03; or (iv) such
Mortgage Loan is purchased by the Majority Certificateholder of the Controlling
Class pursuant to Section 3.18(b), by the Master Servicer or the Special
Servicer pursuant to Section 3.18(c), or by the Master Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 9.01. With
respect to any REO Property (and the related REO Loan), any of the following
events: (x) a Final Recovery Determination is made with respect to such REO
Property; or (y) such REO Property is purchased by the Master Servicer or the
Majority Certificateholder of the Controlling Class pursuant to Section 9.01.
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"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially
Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18
(including, without limitation, legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property repurchased (x) by the Mortgage Loan Seller or the Additional
Warranting Party or any Affiliate of either of them pursuant to Section 2.03
within 120 days of the Mortgage Loan Seller's or the Additional Warranting
Party's, as the case may be, notice or discovery of the breach, Document Defect
or other event giving rise to such repurchase obligation, (y) by the Majority
Certificateholder of the Controlling Class, the Master Servicer or the Special
Servicer pursuant to Section 3.18 or (z) by the Master Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 9.01), the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation; (ii) the
liquidation of a Mortgaged Property or other collateral constituting, or that
constituted, security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion
thereof required to be released to the related Mortgagor in accordance with
applicable law and the terms and conditions of the related Mortgage Note and
Mortgage; (iii) the realization upon any deficiency judgment obtained against a
Mortgagor or any guarantor; (iv) the purchase of a Defaulted Mortgage Loan by
the Majority Certificateholder of the Controlling Class pursuant to Section
3.18(b) or by the Master Servicer or the Special Servicer pursuant to Section
3.18(c) or any other sale thereof pursuant to Section 3.18(d); (v) the
repurchase of a Mortgage Loan by the Mortgage Loan Seller or the Additional
Warranting Party or an Affiliate of either of them pursuant to Section 2.03; or
(vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer or
the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such
Class or Classes, as the case may be.
"Master Servicer": CRIIMI MAE Services Limited Partnership, in its
capacity as master servicer, its successor in interest or any successor master
servicer appointed as herein provided.
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"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Collection Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest (including, without limitation,
Excess Interest), Liquidation Proceeds and Insurance Proceeds received after
the end of the related Collection Period, (iii) any Prepayment Premiums
received after the end of the related Collection Period, (iv) any amounts
payable or reimbursable to any Person from the Collection Account pursuant to
any of clauses (ii) through (xvi) of Section 3.05(a), (v) if such Master
Servicer Remittance Date occurs during February of any year or during January
of any year that is not a leap year, the Interest Reserve Amounts with respect
to the Interest Reserve Loans required pursuant to Section 3.04(c) to be
withdrawn from the Collection Account and deposited into the Interest Reserve
Account on such Master Servicer Remittance Date, and (vi) any amounts deposited
in the Collection Account in error; provided that, with respect to the Master
Servicer Remittance Date that occurs in the same calendar month as the Final
Distribution Date, the Master Servicer Remittance Amount will be calculated
without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which any Primary Servicing Fees are payable.
"Master Servicing Fee Rate": With respect to each Mortgage Loan (and
any related REO Loan), the rate per annum that is .29 basis points (.0029%
per annum) less than the Administrative Fee Rate specified for such Mortgage
Loan in the Mortgage Loan Schedule.
"Midland Sub-Servicing Agreement": The Sub-Servicing Agreement between
the Master Servicer and Midland Loan Services, Inc. entered into as of, or
within 90 days following, the Closing Date.
"Modified Mortgage Loan": Any Mortgage Loan as to which any Servicing
Transfer Event has occurred and which has been modified by the Special Servicer
pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan);
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(B) except as expressly contemplated by the related Mortgage, results
in a release of the lien of the Mortgage on any material portion of the
related Mortgaged Property without a corresponding Principal Prepayment in
an amount not less than the fair market value (as is), as determined by an
Appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely), of
the property to be released; or
(C) in the good faith and reasonable judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or reduces
the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, for any Due Date
as of which such Mortgage Loan is outstanding, the scheduled monthly payment
(or, in the case of a Hyper-Amortization Loan after its Anticipated Repayment
Date, the minimum required monthly payment) of principal and/or interest on
such Mortgage Loan, including, without limitation, a Balloon Payment, that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20) and applicable law; provided that the Monthly Payment due in respect of
any Hyper-Amortization Loan after its Anticipated Repayment Date shall not
include Excess Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the Sponsor,
notice of which designation shall be given to the Trustee, the Master Servicer,
the Special Servicer and the REMIC Administrator, and specific ratings of
Moody's Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Morgan Guaranty": Morgan Guaranty Trust Company of New York or its
successor in interest.
"Morgan Guaranty Mortgage Loan": Any of the Mortgage Loans acquired by
the Mortgage Loan Seller from Morgan Guaranty pursuant to the Morgan
Guaranty/CREI Mortgage Loan Purchase Agreement. The Morgan Guaranty Mortgage
Loans are identified as such on the Mortgage Loan Schedule under the heading
"Loan Contributor".
"Morgan Guaranty/CREI Mortgage Loan Purchase Agreement": The Mortgage
Loan Purchase Agreement, dated as of June 25, 1998, between Morgan Guaranty and
CREI.
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"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to Section
2.01(c), collectively the following documents:
(i) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator,
without recourse, either in blank or to the order of the
Trustee in the following form: "Pay to the order of State
Street Bank and Trust Company as trustee for the registered
holders of Mortgage Capital Funding, Inc.,
Multifamily/Commercial Mortgage Pass-Through Certificates,
Series 1998-MC2, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record thereof
prior to the Trustee, if any, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, that is complete and in
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator, in
favor of the Trustee (in such capacity);
(iv) the original or a copy of any related Assignment of Leases (if
any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case
with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
any such item is a document separate from the Mortgage), that
is complete and in recordable form, executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by
the originator, in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding
assignment of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of
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assignment from the originator of the Mortgage Loan to the most
recent assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), that is
complete, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator, in
favor of the Trustee (in such capacity), which assignment may
be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where the
terms or provisions of the Mortgage, Mortgage Note or any
related security document have been modified or the Mortgage
Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued as of the date of the origination of the Mortgage Loan,
together with all endorsements or riders (or copies thereof)
that were issued with or subsequent to the issuance of such
policy, insuring the priority of the Mortgage as a first lien
on the Mortgaged Property;
(x) the original of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the possession
of the Mortgage Loan Seller or the Additional Warranting Party,
as applicable, at the time the Mortgage Files were delivered to
the Trustee;
(xi) (A) file or certified copies of any UCC Financing Statements
and continuation statements which were filed in order to
perfect (and maintain the perfection of) any security interest
held by the originator of the Mortgage Loan (and each assignee
of record prior to the Trustee) in and to the personalty of the
Mortgagor at the Mortgaged Property (in each case with evidence
of filing thereon) and which were in the possession of the
Mortgage Loan Seller or the Additional Warranting Party, as
applicable, at the time the Mortgage Files were delivered to
the Trustee and (B) if any such security interest is perfected
and the related UCC-1, UCC-2 or UCC-3 financing statements were
in the possession of the Mortgage Loan Seller or the Additional
Warranting Party, as applicable, a UCC-2 or UCC-3 financing
statement, as applicable, that is complete and in form suitable
for filing, executed by the most recent assignee of record
prior to the Trustee or, if none, by the originator, evidencing
the transfer of such security interest to the Trustee (or a
certified copy of such assignment as sent for filing);
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(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor
if the Mortgage, Mortgage Note or other document or instrument
referred to above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy
thereof;
(xiv) the original or copy of any intercreditor agreement relating to
such Mortgage Loan;
(xv) the original or copy of any operating lease relating to the
related Mortgaged Property; and
(xvi) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"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. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in
accordance with Section 2.02(e). The Mortgage Loan Schedule shall set forth,
among other things, the following information with respect to each Mortgage
Loan:
(i) the loan number and control number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
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(vi) the (A) remaining term to stated maturity or, in the case of a
Hyper-Amortization Loan, the Anticipated Repayment Date and
(B) Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) the Administrative Fee Rate (inclusive of the Primary Servicing
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) whether the Mortgagor's interest in the related Mortgaged
Property is a leasehold estate;
(xii) whether it is a CREI Mortgage Loan or a Morgan Guaranty
Mortgage Loan;
(xiii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, a reference to the other Mortgage Loans that
are cross-collateralized with such Mortgage Loan;
(xiv) whether the Mortgage Loan is a Hyper-Amortization Loan; and
(xv) whether the Mortgage Loan is a Defeasance Loan.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more
than one list, collectively setting forth all of the information required.
"Mortgage Loan Seller": CREI.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior to
its Stated Maturity Date, the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the terms of the related Mortgage Note (as such may be
modified at any time following the Closing Date) and applicable law, (ii) any
Mortgage Loan after its Stated Maturity Date, the annualized rate described in
clause (i)
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above determined without regard to the passage of such Stated Maturity Date,
and (iii) any REO Loan, the annualized rate described in clause (i) or (ii)
above, as applicable, determined as if the related Mortgage Loan had remained
outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the sum of (i) the aggregate amount remitted by the Master
Servicer for deposit in the Distribution Account for such Distribution Date
pursuant to Section 3.19(e) in connection with such Prepayment Interest
Shortfalls and (ii) the aggregate of all Prepayment Interest Excesses collected
in connection with the receipt of Principal Prepayments on the Mortgage Loans
during the related Collection Period.
"Net Default Charges": With respect to any Mortgage Loan or REO Loan,
any Default Charges actually collected thereon (determined in accordance with
the allocation of amounts collected as specified in Section 1.02), net of any
Advance Interest accrued on Advances made in respect of such Mortgage Loan.
"Net Investment Earnings": With respect to any Investment Account for
any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the related Administrative Fee Rate.
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"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property, minus the total
fixed and variable operating expenses incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, (ii) capital expenditures and (iii) debt
service on loans secured by the Mortgaged Property).
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or proposed to be
made in respect of a Mortgage Loan or REO Loan which, as determined by the
Master Servicer or, if applicable, the Trustee, in its reasonable and good
faith judgment, will not be recoverable (together with Advance Interest accrued
thereon), or which in fact was not ultimately recovered, from late payments,
Insurance Proceeds, Liquidation Proceeds or any other recovery on or in respect
of such Mortgage Loan or the related REO Property (without giving effect to
potential recoveries on deficiency judgments or recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Mortgage Loan or an REO Property which, as
determined by the Master Servicer, the Special Servicer or, if applicable, the
Trustee, in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or which in fact was not
ultimately recovered, from late payments, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Mortgage Loan or such
REO Property (without giving effect to potential recoveries on deficiency
judgments or recoveries from guarantors).
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class J, Class K, Class L or
Residual Certificate.
"Non-United States Person": Any person other than a United States
Person.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or a
Responsible Officer of the Trustee.
"Operating Statement Analysis": As defined in Section 4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax
matters or a resignation under Section 6.04, be Independent counsel, but who
otherwise may be salaried counsel for the Sponsor, the Mortgage Loan Seller,
the Additional Warranting Party, the Trustee, the REMIC Administrator, the
Master Servicer or the Special Servicer), which written opinion is acceptable
and delivered to the addressee(s).
"OTS": The Office of Thrift Supervision or any successor thereto.
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"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": With respect to the Class A-1 Certificates, for
any Distribution Date, 6.325% per annum; with respect to the Class A-2
Certificates, for any Distribution Date, 6.423% per annum; with respect to the
Class B Certificates, for any Distribution Date, 6.549% per annum; with respect
to the Class C Certificates, for any Distribution Date, 6.726% per annum; with
respect to the Class D Certificates, for any Distribution Date, the lesser of
(i) 7.091% per annum and (ii) the Weighted Average REMIC II Remittance Rate for
such Distribution Date; with respect to the Class E, Class F, Class G and Class
H Certificates, for any Distribution Date, the Weighted Average REMIC II
Remittance Rate for such Distribution Date; with respect to the Class J, Class
K and Class L Certificates, for any Distribution Date, 6.000% per annum; and,
with respect to the Class X Certificates, for any Distribution Date, the
excess, if any, of the Weighted Average REMIC II Remittance Rate for such
Distribution Date, over the Weighted Average Adjusted REMIC II Remittance Rate
for such Distribution Date.
"Payment Priority": With respect to any Class of Certificates, the
priority of the Holders thereof in respect of the Holders of the other Classes
of Certificates to receive distributions out of the Available Distribution
Amount for any Distribution Date. The Payment Priority of the respective
Classes of Certificates shall be, in descending order, as follows: first, the
respective Classes of Senior Certificates, pro rata; second, the Class B
Certificates; third, the Class C Certificates; fourth, the Class D
Certificates; fifth, the Class E Certificates; sixth, the Class F Certificates;
seventh, the Class G Certificates; eighth, the Class H Certificates; ninth, the
Class J Certificates; tenth, the Class K Certificates; eleventh, the Class L
Certificates; and last, the respective Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC III Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator
of which is the Initial Class Principal Balance or Initial Class Notional
Amount, as the case may be, of the relevant Class. With respect to a Residual
Certificate, the percentage interest in distributions to be made with respect
to the relevant Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following obligations:
(i) direct obligations of, or obligations fully guaranteed as to
timely 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;
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(ii) repurchase obligations with respect to any security described in
clause (i) above, provided that the party agreeing to repurchase such
obligations is a financial institution meeting the requirements set forth
in clause (iii) below;
(iii) demand and time 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, as
applicable, as confirmed in writing that such investment would not result
in the qualification, downgrade or withdrawal of the rating then assigned
by either Rating Agency to any Class of Certificates);
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof rated no less than "P-1" by
Moody's and "F-1+" by Fitch; and
(v) any other obligation or security which would not result in the
downgrade, qualification or withdrawal of the rating then assigned by
either Rating Agency to any Class of Certificates, evidence of which shall
be confirmed in writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that no investment described hereunder may be sold prior to
stated maturity if such sale would result in a loss of principal on the
instrument or a tax on "prohibited transactions" under Section 860F of the
Code; and provided, further, that no investment described hereunder may have an
"r" highlighter or other comparable qualifier attached to its rating; and
provided, further, that each investment described hereunder shall, by its
terms, have a predetermined fixed amount of principal due at maturity (that
cannot vary or change), an original maturity of not more than 365 days and
either a fixed interest rate or variable interest rate tied to a single
interest rate index plus a single fixed spread; and provided, further, that
each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions.
"Permitted Transferee": Any Transferee of a Residual Certificate other
than either a Disqualified Organization or a Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
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"Phase I Environmental Assessment": A "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Fannie Mae
Multifamily Guide, Part II, as amended from time to time.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that each Hyper-Amortization
Loan is paid in full on its Anticipated Repayment Date and that no Mortgage
Loan is otherwise prepaid prior to its Stated Maturity Date, such assumption to
be used for determining the accrual of original issue discount, market discount
and premium, if any, on the Mortgage Loans, the REMIC I Regular Interests, the
REMIC II Regular Interests and the Certificates for federal income tax
purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment, in full or in part, after the related
Due Date in any Collection Period, any payment of interest (net of related
Master Servicing Fees and exclusive of Prepayment Premiums, Default Interest
and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment
Date, Excess Interest) actually collected from the related Mortgagor and
intended to cover the period from the related Due Date in such Collection
Period to the date of prepayment.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment, in full or in part, prior to the
related Due Date in any Collection Period, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected and exclusive of, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, Excess Interest) that would have accrued at a per
annum rate equal to the sum of the Net Mortgage Rate for such Mortgage Loan
plus the Trustee Fee Rate, on the amount of such Principal Prepayment during
the period commencing on the date as of which such Principal Prepayment was
applied to such Mortgage Loan and ending on the day prior to the related Due
Date in such Collection Period, inclusive.
"Prepayment Premium": Any premium, penalty, charge or fee (including,
without limitation, a yield maintenance payment) paid or payable, as the
context requires, by a Mortgagor in connection with a Principal Prepayment on,
or other early collection of principal of, a Mortgage Loan or any successor REO
Loan.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee.
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"Primary Servicing Fee Rate": With respect to each Mortgage Loan that
is subject to a Sub-Servicing Agreement as of the Closing Date, the rate per
annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to each of the Master
Servicer and the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement, initially located in
Rockville, Maryland, respectively.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the Current Principal Distribution Amount for such
Distribution Date and, if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the preceding Distribution Date, over the aggregate distributions of principal
made on the Sequential Pay Certificates on the preceding Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest (without regard to any
Prepayment Premium that may have been collected) representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment.
"Proposed Plan": As defined in Section 3.17(a).
"Prospectus Supplement": That certain prospectus supplement dated June
25, 1998, relating to the Registered Certificates, that is a supplement to the
Base Prospectus.
"PTCE": As defined in Section 5.02(c).
"PTE": As defined in Section 5.02(c).
"Purchase Price": With respect to any Mortgage Loan, a price equal to
the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (excluding, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, Excess Interest)
on the Mortgage Loan at the related Mortgage Rate to but not including the Due
Date in the Collection Period of purchase, (b) all related unreimbursed
Servicing Advances, and (c) if paid in connection with any repurchase of such
Mortgage Loan by the Mortgage Loan Seller or the Additional Warranting Party or
any Affiliate of either of them pursuant to Section 2.03, all accrued and
unpaid Advance Interest in respect of related Advances and (without duplication
of the amounts described in the immediately preceding clause (b)) all other
unreimbursed costs and expenses incurred by the Trust in connection with such
repurchase. With respect to any REO Property, a price equal to the unpaid
principal balance of the related REO Loan as of the date of purchase, together
with (a) all accrued and unpaid interest (excluding, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, Excess Interest)
on such REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of purchase, (b) all related unreimbursed
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Servicing Advances, and (c) if paid in connection with any repurchase of such
REO Property by the Mortgage Loan Seller or the Additional Warranting Party or
any Affiliate of either them pursuant to Section 2.03, all accrued and unpaid
Advance Interest in respect of related Advances and (without duplication of the
amounts described in the immediately preceding clause (b)) all other
unreimbursed costs and expenses incurred by the Trust in connection with such
repurchase. The Purchase Price of any Mortgage Loan or REO Property is intended
to include, without limitation, principal and interest previously advanced with
respect thereto and not previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent appraiser, who is an MAI,
with at least five years of experience in respect of the relevant geographic
location and property type.
"Qualified Institutional Buyer": A "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency": Each of Moody's and Fitch.
"Realized Loss": With respect to each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any REO
Loan as to which a Final Recovery Determination has been made as to the related
REO Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, plus (ii) all accrued but unpaid interest (excluding Default Interest
and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment
Date, Excess Interest) on such Mortgage Loan or REO Loan, as the case may be
(without taking into account the amounts described in subclause (iv) of this
sentence), to but not including the Due Date in the Collection Period in which
the Final Recovery Determination was made, plus (iii) any related unreimbursed
Servicing Advances as of the commencement of the Collection Period in which the
Final Recovery Determination was made, together with any new related Servicing
Advances made during such Collection Period, minus (iv) all payments and
proceeds, if any, received in respect of such Mortgage Loan or REO Loan, as the
case may be, during the Collection Period in which such Final Recovery
Determination was made (net of any related Liquidation Expenses paid
therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy, insolvency or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Master Servicer or Special Servicer pursuant to
Section 3.20, the amount of such principal or interest (other than any Default
Interest or Excess Interest) so forgiven.
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With respect to any Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy, insolvency or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Master Servicer or Special Servicer pursuant to
Section 3.20, the amount of the consequent reduction, if any, in the interest
portion of each successive Monthly Payment due thereon. Each such Realized Loss
shall be deemed to have been incurred on the Due Date for each affected Monthly
Payment.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": The Class X, Class A-1, Class A-2, Class B,
Class C, Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall
notify the Master Servicer and the Special Servicer in writing of its
selection.
"Release Date": As defined in Section 3.20(g).
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": State Street Bank and Trust Company, in its
capacity as REMIC administrator hereunder, its successor in interest, or any
successor REMIC administrator appointed as herein provided.
"REMIC I": The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to which a REMIC election is to be made, consisting of: (i) the Mortgage Loans
as from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received or receivable after the Cut-off Date
(inclusive of Excess Interest collected in respect of the Hyper-Amortization
Loans after their respective Anticipated Repayment Dates and exclusive of
payments of principal, interest and other amounts due and payable on the
Mortgage Loans on or before the Cut-off Date), together with all documents,
Escrow Payments and Reserve Funds delivered or caused to be delivered hereunder
with respect to such Mortgage Loans by the Mortgage Loan Seller and the
Additional Warranting Party;
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(ii) any REO Property acquired in respect of a Mortgage Loan and all payments
and proceeds of such REO Property; and (iii) such funds or assets as from time
to time are deposited in the Distribution Account, the Collection Account and
the REO Account (if established).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance.
"REMIC I Remittance Rate": With respect to any Distribution Date: (a)
in the case of any REMIC I Regular Interest that corresponds to a Mortgage Loan
(or any successor REO Loan) that, as of the Closing Date, provided for the
accrual of interest on a 30/360 Basis, a per annum rate equal to the Net
Mortgage Rate in effect for such Mortgage Loan as of the Closing Date; and (b)
in the case of any REMIC I Regular Interest that corresponds to a Mortgage Loan
(or any successor REO Loan) that, as of the Closing Date, provided for the
accrual of interest on an Actual/360 Basis, a per annum rate equal to a
fraction (expressed as a percentage), the numerator of which is (subject to
adjustment as provided below) the product of twelve times the aggregate amount
of interest that would have accrued during the related Interest Accrual Period
on the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date if such interest were
calculated on an Actual/360 Basis at the Net Mortgage Rate in effect for the
related Mortgage Loan as of the Closing Date, and the denominator of which is
the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date; provided that, in the
case of a REMIC I Regular Interest that corresponds to an Interest Reserve
Loan, if the subject Distribution Date occurs during February of any year or
during January of any year other than a leap year, the amount of the numerator
for the fraction described in clause (b) above shall be reduced by the related
Interest Reserve Amount to be deposited in the Interest Reserve Account on the
related Master Servicer Remittance Date and, if the subject Distribution Date
occurs during March of any year, the amount of the numerator for the fraction
described in clause (b) above shall be increased by any related Interest
Reserve Amount(s) to be transferred from the Interest Reserve Account to the
Distribution Account for distribution on such Distribution Date in March; and
provided, further, that, in the case of a REMIC I Regular Interest that
corresponds to a Mortgage Loan with a Stated Maturity Date that occurs other
than on the first day of the relevant calendar month, the REMIC I Remittance
Rate in respect of such REMIC I Regular Interest for the Distribution Date that
relates to the Collection Period in which such Stated Maturity Date occurs
shall equal the product of (x) the REMIC I Remittance Rate that would otherwise
have been in effect for such REMIC I Regular Interest with respect to such
Distribution Date without regard to this proviso, multiplied by (y) a fraction
(expressed as a percentage), the numerator of which shall be the number of days
in the applicable calendar month up to but not including such Stated Maturity
Date, and the denominator of which shall be 30.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests, with respect to which a separate REMIC election is
to be made.
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"REMIC II Regular Interest": Any of the 12 separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the REMIC II Remittance Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC II Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC II Remittance Rate": With respect to each REMIC II Regular
Interest, for any Distribution Date, the Weighted Average REMIC I Remittance
Rate for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests, with respect to which a separate REMIC election is
to be made.
"REMIC III Certificate": Any Certificate, other than a Class R-I or
Class R-II Certificate.
"REMIC III Regular Certificate": Any REMIC III Certificate, other than
a Class R-III Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final Treasury regulations and any published
rulings, notices and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16(b) on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "CRIIMI
MAE Services Limited Partnership [or the name of any successor Special
Servicer], as Special Servicer, in trust for registered holders of Mortgage
Capital Funding, Inc., Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1998-MC2".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
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"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Mortgage Loan. Each REO Loan shall be deemed to provide for monthly payments of
principal and/or interest equal to its Assumed Monthly Payment and otherwise to
have the same terms and conditions as the predecessor Mortgage Loan. Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of the predecessor Mortgage Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment, except to the extent it constitutes part of any related
Assumed Monthly Payments), Assumed Monthly Payments (in the case of a Balloon
Mortgage Loan delinquent in respect of its Balloon Payment) and other amounts
due and owing, or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, shall be deemed to
continue to be due and owing in respect of an REO Loan. All amounts payable or
reimbursable to the Master Servicer, the Special Servicer and/or the Trustee in
respect of the related Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Servicing Fees and any
unreimbursed Advances, together with any Advance Interest accrued and payable
to the Master Servicer, the Special Servicer and/or the Trustee in respect of
such Advances, shall continue to be payable or reimbursable to the Master
Servicer, Special Servicer and/or the Trustee, as the case may be, in respect
of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of the Trust for the benefit of the Certificateholders pursuant to
Section 3.09 through foreclosure, acceptance of a deed-in-lieu of foreclosure
or otherwise in accordance with applicable law in connection with the default
or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the form of
Exhibit G-4 attached hereto setting forth, among other things, with respect to
each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of
such report or reports, (i) the Acquisition Date of such REO Property, (ii) the
amount of REO Revenues collected with respect to such REO Property (net of
related expenses) and other amounts, if any, received on such REO Property
during the Collection Period ending on such Determination Date and (iii) the
value of such REO Property based on the most recent Appraisal or other
valuation thereof available to the Master Servicer as of such Determination
Date (including any valuation prepared internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Representing Party": As defined in Section 2.05(c).
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit E attached hereto.
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"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, a claims-paying ability (or equivalent) rating of "A2" or better from
Moody's and a claims-paying ability (or equivalent) rating of "A" or better
from Fitch (or, if not rated by Fitch, of "A" or better from Duff & Phelps
Credit Rating Co., "A" or better from Standard & Poor's Rating Services, a
division of the McGraw-Hill Companies, Inc. or "A:IX" or better from A.M.
Best); unless each of the Rating Agencies has confirmed in writing that an
insurance company with lower or fewer claims-paying ability ratings shall not
result, in and of itself, in a downgrading, withdrawal or qualification of the
then current rating assigned by such Rating Agency to any Class of
Certificates.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for principal and interest payments, repairs,
replacements, capital improvements (including, without limitation, tenant
improvements and leasing commissions), and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I, Class R-II or Class R-III
Certificate.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Office, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant
officer thereof.
"Responsible Party": With respect to any Document Defect or alleged
Document Defect or any breach or alleged breach of a representation or warranty
set forth in Section 2.05(c), either: (i) the Mortgage Loan Seller, if such
Document Defect or alleged Document Defect relates to a CREI Mortgage Loan or
if such breach or alleged breach is of a representation or warranty as to which
the Mortgage Loan Seller is the Representing Party; or (ii) the Additional
Warranting Party, if such Document Defect or alleged Document Defect relates to
a Morgan Guaranty Mortgage Loan or if such breach or alleged breach is of a
representation or warranty as to which the Additional Warranting Party is the
Representing Party. With respect to the exercise of the Defeasance Option in
respect of the Bunswig Square Office Building Loan prior to the second
anniversary of the Closing Date, the Additional Warranting Party.
"Securities Act": The Securities Act of 1933, as amended.
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"Security Agreement": With respect to any Mortgage Loan, any security
agreement, chattel mortgage or similar document or instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2 or Class X Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the
Class A-1 and Class A-2 Certificates outstanding immediately prior to such
Distribution Date equals or exceeds the sum of (a) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date, plus (b) the lesser of (i) the Principal
Distribution Amount for such Distribution Date and (ii) the portion of the
Available Distribution Amount for such Distribution Date that will remain after
the distributions of Distributable Certificate Interest to be made on the
Senior Certificates on such Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K or Class L Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred or to be incurred, as the context requires,
by the Master Servicer or the Special Servicer (or, if applicable, the Trustee)
in connection with the servicing of a Mortgage Loan after a default,
delinquency or other unanticipated event, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Sections 3.03(c) and 3.09, (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan or REO Property, (d) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including, without limitation, foreclosures,
and (e) the operation, management, maintenance and liquidation of any REO
Property; provided that notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer or the
Special Servicer, such as costs for office space, office equipment, supplies
and related expenses, employee salaries and related expenses and similar
internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Special
Servicer hereunder shall be considered "Servicing Advances" for the purposes
hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan, the
Master Servicing Fee and the Special Servicing Fee.
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"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
environmental site assessment report(s) referred to in Section 2.05(c)(xiv), in
the possession of the Master Servicer or the Special Servicer and relating to
the origination and servicing of any Mortgage Loan.
"Servicing Officer": Any officer or authorized signatory of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories
furnished by such party to the Trustee and the Sponsor on the Closing Date, as
such list may be amended from time to time thereafter.
"Servicing Return Date": With respect to any Corrected Mortgage Loan,
the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer and
the Special Servicer, to service and administer the Mortgage Loans and any REO
Properties for which such Person is responsible hereunder: (a) in the same
manner in which, and with the same care, skill, prudence and diligence with
which, the Master Servicer or Special Servicer, as the case may be, generally
services and administers similar mortgage loans or assets, as applicable, for
other third parties (giving due consideration to customary industry servicing
standards) or generally services and administers similar mortgage loans or
assets, as applicable, held in its own portfolio, whichever servicing procedure
is of a higher standard; (b) with a view to the timely collection of all
Monthly Payments under the Mortgage Loans or, if a Mortgage Loan comes into and
continues in default and if, in the good faith and reasonable judgment of the
Special Servicer, no satisfactory arrangements can be made for the collection
of the delinquent payments, the maximization of the recovery on such Mortgage
Loan to the Certificateholders (as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Net Mortgage Rate (or, in
the case of a Hyper-Amortization Loan after its Anticipated Repayment Date, the
related Net Mortgage Rate in effect immediately prior to such Anticipated
Repayment Date)); and (c) without regard to: (i) any relationship that the
Master Servicer or the Special Servicer, as the case may be, or any Affiliate
thereof may have with any related Mortgagor or any other party to this
Agreement; (ii) the ownership of any Certificate by the Master Servicer or the
Special Servicer, as the case may be, or by any Affiliate thereof; (iii) the
Master Servicer's obligation to make Advances; (iv) the Special Servicer's
obligation to make (or to direct the Master Servicer to make) Servicing
Advances; (v) the right of the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, to receive
compensation for its services or reimbursement of costs hereunder generally or
with respect to any particular transaction; (vi) the management and/or
servicing of mortgage loan portfolios for other third parties; and (vii) any
indemnity or repurchase obligation on the part of the Master Servicer or the
Special Servicer, as the case may be, or any of their respective Affiliates
with respect to the Mortgage Loans.
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"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02(a), a hypothetical
Certificate of any Class of REMIC III Regular Certificates evidencing a $1,000
denomination or, in the case of a Class X Certificate, a 100% Percentage
Interest in the related Class.
"Special Servicer": CRIIMI MAE Services Limited Partnership, in its
capacity as special servicer, its successor in interest or any successor
special servicer appointed as herein provided.
"Special Servicer Loan Status Report": A report or reports setting
forth, among other things, as of the close of business on the Determination
Date immediately preceding the preparation of such report or reports, (i) the
aggregate unpaid principal balance of all Specially Serviced Mortgage Loans and
(ii) a loan-by-loan listing of all Specially Serviced Mortgage Loans indicating
their status and the date and reason for transfer to the Special Servicer,
substantially in the form of Exhibit G-5 attached hereto.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which any
of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Balloon
Payment, which failure has continued, or the Master Servicer
determines, in its good faith and reasonable judgment, will
continue, unremedied for 30 days; or
(b) the related Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment
required under the related Mortgage Note or the related Mortgage,
which failure has continued, or the Master Servicer determines,
in its good faith and reasonable judgment, will continue,
unremedied for 60 days; or
(c) the Master Servicer has determined, in its good faith and
reasonable judgment, that a default in the making of a Monthly
Payment (including, without limitation, a Balloon Payment) or any
other payment required under the related Mortgage Note or the
related Mortgage is likely to occur within 30
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days and is likely to remain unremedied for at least 60 days or,
in the case of a Balloon Payment, for at least 30 days; or
(d) there shall have occurred a default under the related loan
documents, other than as described in clause (a) or (b) above,
that may, in the Master Servicer's good faith and reasonable
judgment, materially impair the value of the related Mortgaged
Property as security for the Mortgage Loan or otherwise
materially and adversely affect the interests of
Certificateholders, which default has continued unremedied for
the applicable cure period under the terms of the Mortgage Loan
(or, if no cure period is specified, 60 days); or
(e) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the related Mortgagor and such decree or order
shall have remained in force undischarged or unstayed for a
period of 60 days; or
(f) the related Mortgagor shall have consented to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(g) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a
petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit of its
creditors, or voluntarily suspended payment of its obligations;
or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect
to the related Mortgaged Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property has become an REO Property, or at such time
as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be
characterized as a Specially Serviced Mortgage Loan (and provided that no other
Servicing Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a) and
(b) above, the related Mortgagor has made three consecutive full
and timely Monthly
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Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (c), (e),
(f) and (g) above, such circumstances cease to exist in the good
faith and reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d) above,
such default is cured; and
(z) with respect to the circumstances described in clause (h) above,
such proceedings are terminated.
"Sponsor": Mortgage Capital Funding, Inc., or its successor in
interest.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date on which the last payment of principal is due and payable under the terms
of the related Mortgage Note as in effect on the Closing Date, without regard
to any change in or modification of such terms in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or a modification, waiver
or amendment of such Mortgage Loan granted or agreed to by the Master Servicer
or Special Servicer pursuant to Section 3.20 and, in the case of a
Hyper-Amortization Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
successor REO Loan), a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.02
to, principal of or with respect to such Mortgage Loan (or successor REO Loan)
that are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such
Distribution Date, and (ii) the principal portion of any Realized Loss incurred
in respect of such Mortgage Loan (or successor REO Loan) during the related
Collection Period. Notwithstanding the foregoing, if a Liquidation Event occurs
in respect of any Mortgage Loan or REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of the related REO Loan, as the case may be,
shall be zero commencing as of the Distribution Date in the Collection Period
next following the Collection Period in which such Liquidation Event occurred.
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"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section
3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Tax Matters Person": With respect to each of REMIC I, REMIC II and
REMIC III, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T. The "Tax Matters Person" for
each of REMIC I, REMIC II and REMIC III is the Holder of Certificates
evidencing the largest Percentage Interest in the related Class of Residual
Certificates.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II and REMIC III due to its
classification as a 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 Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal law or
Applicable State Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II and
REMIC III.
"Trustee": State Street Bank and Trust Company, in its capacity as
Trustee hereunder, its successor in interest, or any successor trustee
appointed as herein provided.
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"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an aggregate amount equal to one
month's interest at the Trustee Fee Rate in respect of each Mortgage Loan and
REO Loan, calculated on the same Interest Accrual Basis as is applicable to the
accrual of interest on such Mortgage Loan and accrued during the related
Interest Accrual Period on the Stated Principal Balance of such Mortgage Loan
or REO Loan, as the case may be, outstanding immediately prior to such
Distribution Date.
"Trustee Fee Rate": A rate of .0029% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form UCC-1,
Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest (calculated on a
30/360 Basis) at the REMIC I Remittance Rate applicable to such REMIC I Regular
Interest for such Distribution Date, accrued on the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior to such
Distribution Date; and, with respect to any REMIC II Regular Interest, for any
Distribution Date, one month's interest (calculated on a 30/360 Basis) at the
REMIC II Remittance Rate applicable to such REMIC II Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such
REMIC II Regular Interest outstanding immediately prior to such Distribution
Date. The Uncertificated Accrued Interest in respect of any REMIC I Regular
Interest or REMIC II Regular Interest for any Distribution Date shall be deemed
to have accrued during the related Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution
Date, reduced (to not less than zero) by that portion, if any, of the Net
Aggregate Prepayment Interest Shortfall, if any, for such Distribution Date
that is attributable to the Mortgage Loan that corresponds to such REMIC I
Regular Interest; and, with respect to any REMIC II Regular Interest for any
Distribution Date, the Uncertificated Accrued Interest in respect of such REMIC
II Regular Interest for such Distribution Date, reduced (to not less than zero)
by that portion, if any, of the Net Aggregate Prepayment Interest Shortfall for
such Distribution Date allocated to such REMIC II Regular Interest as provided
below. The portion, if any, of the Net Aggregate Prepayment Interest Shortfall
for any Distribution Date that is allocated to any Class of Sequential Pay
Certificates in accordance with the definition of "Distributable Certificate
Interest" shall be deemed to have first been allocated to the Corresponding
REMIC II Regular Interest; and the portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for any Distribution Date that is allocated to
the Class X Certificates in accordance with the definition of
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"Distributable Certificate Interest" shall be deemed to have first been
allocated to all the REMIC II Regular Interests up to an amount equal to, and
on a pro rata basis in accordance with, the Class X Portion of the
Uncertificated Accrued Certificate Interest in respect of each such REMIC II
Regular Interest for such Distribution Date.
"Uncertificated Principal Balance": The principal amount of any REMIC
I Regular Interest or REMIC II Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each REMIC I Regular Interest shall equal the Cut-off Date Balance of the
related Mortgage Loan, and the Uncertificated Principal Balance of each REMIC
II Regular Interest shall equal the amount specified as its initial
Uncertificated Principal Balance in the Preliminary Statement hereto. On each
Distribution Date, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made thereon on such Distribution Date pursuant to Section
4.05(a) and, if and to the extent appropriate, shall be further permanently
reduced on such Distribution Date as provided in Section 4.05(d). On each
Distribution Date, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made thereon on such Distribution Date pursuant to Section 4.05(e)
and, if and to the extent appropriate, shall be further permanently reduced on
such Distribution Date as provided in Section 4.05(g).
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the Certificates. At
all times during the term of this Agreement, 94.0% of the Voting Rights shall
be allocated among the Holders of the various outstanding Classes of Sequential
Pay Certificates in proportion to the respective Class Principal Balances of
their Certificates, 5.0% of the Voting Rights shall be allocated to the Holders
of the Class X Certificates, and 1/3 of 1.0% of the Voting Rights shall be
allocated to the Holders of each Class of Residual Certificates. Voting Rights
allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates.
"Watchlist": A report containing substantially the information set
forth in Exhibit G-8 attached hereto, including, among other things, any
Mortgage Loan that, as of the Determination Date immediately preceding the
preparation of such report, had a Debt Service Coverage Ratio of
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less than 1.0x or, in the Master Servicer's good faith and reasonable judgment,
was otherwise in jeopardy of becoming a Specially Serviced Mortgage Loan.
"Weighted Average Adjusted REMIC II Remittance Rate": With respect to
any Distribution Date, the weighted average of the respective Adjusted REMIC II
Remittance Rates applicable to the REMIC II Regular Interests for such
Distribution Date, weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC II Regular Interests outstanding immediately
prior to such Distribution Date.
"Weighted Average REMIC I Remittance Rate": With respect to any
Distribution Date, the weighted average of the respective REMIC I Remittance
Rates applicable to the REMIC I Regular Interests for such Distribution Date,
weighted on the basis of the respective Uncertificated Principal Balances of
such REMIC I Regular Interests outstanding immediately prior to such
Distribution Date.
"Weighted Average REMIC II Remittance Rate": With respect to any
Distribution Date, the weighted average of the respective REMIC II Remittance
Rates applicable to the REMIC II Regular Interests for such Distribution Date,
weighted on the basis of the respective Uncertificated Principal Balances of
such REMIC II Regular Interests outstanding immediately prior to such
Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as to
which a Workout Fee is payable, 1.0%.
SECTION 1.02. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Group of
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing"
as to each of the Mortgage Loans constituting such Group. All amounts collected
in respect of or allocable to any particular individual Mortgage Loan (whether
or not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form
of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall
be applied for purposes of this Agreement (including, without limitation, for
purposes of determining distributions on the Certificates pursuant to Article
IV and additional compensation payable to the Master Servicer, the Special
Servicer and any Sub-Servicers) as follows: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation
Expenses; second, as a recovery of accrued and unpaid interest (excluding, in
the case of a Hyper-Amortization Loan after its Anticipated Repayment Date,
Excess Interest) at the related Mortgage
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Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date; third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the
future payment of, real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items; fifth, as a recovery of Reserve Funds
to the extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium then due and owing under such Mortgage Loan; seventh, as a
recovery of any Default Charges then due and owing under such Mortgage Loan;
eighth, as a recovery of any assumption fees and modification fees then due and
owing under such Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Mortgage Loan other than remaining unpaid principal
and, in the case of a Hyper-Amortization Loan after its Anticipated Repayment
Date, accrued and unpaid Excess Interest; tenth, as an early recovery of any
remaining principal of such Mortgage Loan to the extent of its entire remaining
unpaid principal balance; and, eleventh, in the case of a Hyper-Amortization
Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Excess Interest on such Hyper-Amortization Loan, to but not including the date
of receipt. The Master Servicer shall, to the fullest extent permitted by
applicable law and the related Mortgage Loan documents, apply all payments on
and proceeds of each Mortgage Loan to amounts actually due and owing from the
related Mortgagor in a manner consistent with the foregoing and shall maintain
accurate records of how all such payments and proceeds are actually applied and
are applied for purposes of this Agreement.
(b) Collections in respect of each REO Property (exclusive of amounts
to be applied to the payment of the costs of operating, managing, maintaining
and disposing of such REO Property) shall be applied for purposes of this
Agreement (including, without limitation for purposes of determining
distributions on the Certificates pursuant to Article IV and additional
compensation payable to the Master Servicer, the Special Servicer and any
Sub-Servicers) as follows: first, as a recovery of any related unreimbursed
Servicing Advances and, if applicable, unpaid Liquidation Expenses; second, as
a recovery of accrued and unpaid interest (excluding, in the case of an REO
Loan that relates to a Hyper-Amortization Loan after its Anticipated Repayment
Date, Excess Interest) on the related REO Loan at the related Mortgage Rate to
but not including the Due Date in the Collection Period of receipt; third, as a
recovery of principal of the related REO Loan to the extent of its entire
unpaid principal balance; fourth, as a recovery of any Prepayment Premium then
due and owing under such REO Loan; fifth, as a recovery of any other amounts
(including, without limitation, Default Charges, but excluding, in the case of
a Hyper-Amortization Loan after its Anticipated Repayment Date, accrued and
unpaid Excess Interest) deemed to be due and owing in respect of the related
REO Loan; and, sixth, in the case of an REO Loan that relates to a Hyper-
Amortization Loan after its Anticipated Repayment Date, as a recovery of
accrued and unpaid Excess Interest on such REO Loan to but not including the
date of receipt.
(c) For the purposes of calculating distributions and allocations of
Realized Losses and Additional Trust Fund Expenses pursuant to this Agreement,
Excess Interest on a Hyper-
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Amortization Loan or a successor REO Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such Hyper-Amortization Loan or
successor REO Loan. To the extent any Excess Interest is not paid on a current
basis, it shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer
pursuant to Section 3.11, are insufficient to cover the full amount of such
fees and charges, such amounts shall be allocated between such of those fees
and charges as are payable to the Master Servicer, on the one hand, and such of
those fees and charges as are payable to the Special Servicer, on the other,
pro rata in accordance with their respective entitlements, and such payments so
made shall constitute the sole amount that will be paid to the Master Servicer
and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the reports to be delivered thereby pursuant to Section 4.02(b).
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established pursuant to this Agreement. State Street Bank and Trust Company
is hereby appointed, and does hereby agree to act, as Trustee hereunder and, in
such capacity, to hold the Trust Fund in trust for the exclusive use and
benefit of all present and future Certificateholders. It is not intended that
this Agreement create a partnership or a joint-stock association.
(b) Each of the Sponsor and, at the direction of the Sponsor given
pursuant to the CREI Mortgage Loan Purchase Agreement, the Mortgage Loan
Seller, concurrently with its execution and delivery hereof, does hereby
assign, transfer, sell and otherwise convey to the Trustee without recourse for
the benefit of the Certificateholders all the right, title and interest of the
Sponsor and the Mortgage Loan Seller, respectively, in, to and under the
Mortgage Loans identified on the Mortgage Loan Schedule and all other assets
included or to be included in REMIC I. Such assignment includes (i) the
Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received or receivable after
the Cut-off Date (other than payments of principal, interest and other amounts
due and payable on the Mortgage Loans on or before the Cut-off Date), together
with all documents delivered or caused to be delivered hereunder with respect
to such Mortgage Loans by the Mortgage Loan Seller and the Additional
Warranting Party; (ii) any REO Property acquired in respect of a Mortgage Loan;
and (iii) such funds or assets as from time to time are deposited in the
Distribution Account, the Collection Account and the REO Account (if
established).
It is intended that the conveyance of the Mortgage Loans and the
related rights and property by the Sponsor and the Mortgage Loan Seller to the
Trustee, as provided in this Section be, and be construed as, an absolute
transfer of the Mortgage Loans by the Sponsor and the Mortgage Loan Seller to
the Trustee for the benefit of the Certificateholders. It is, further, not
intended that such conveyance be deemed a pledge of the Mortgage Loans by the
Sponsor or the Mortgage Loan Seller to the Trustee to secure a debt or other
obligation of the Sponsor or the Mortgage Loan Seller, as the case may be.
However, in the event that the Mortgage Loans are held to be property of the
Sponsor or the Mortgage Loan Seller, or if for any reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then it is
intended that, (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyance provided for in this section shall be deemed
to be a grant by the Sponsor and the Mortgage Loan Seller to the Trustee, for
the benefit of the Certificateholders, of a security interest in all of their
respective right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Notes, the Mortgages, any related
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insurance policies and all other documents in the related Mortgage Files, (B)
all amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and (C) 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 or the REO Account, whether in
the form of cash, instruments, securities or other property; (iii) the
possession by the Trustee or its agent of the Mortgage 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" or
possession by a purchaser or a Person designated by such secured party, for
purposes of perfecting the security interest pursuant to the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Section 9-305, 8-313 or 8-321
thereof); and (d) notifications to, and acknowledgments, receipts or
confirmations from, Persons holding such property shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the
purpose of perfecting such security interest under applicable law. The Sponsor,
the Mortgage Loan Seller and the Trustee shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, 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. At the Sponsor's direction, the Trustee shall execute
and deliver, and the Master Servicer shall (at its expense) file, all filings
necessary to maintain the effectiveness of any original filings necessary under
the Uniform Commercial Code as in effect in any jurisdiction to perfect and
maintain the Trustee's security interest in or lien on the Trust Fund,
including without limitation (A) continuation statements and (B) such other
statements as may be occasioned by any transfer of any interest of the Trustee,
the Master Servicer, the Special Servicer or the Sponsor in the Trust Fund. In
connection herewith, the Trustee shall have all of the rights and remedies of a
secured party and creditor under the Uniform Commercial Code as in force in the
relevant jurisdiction.
(c) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (b) above, the Mortgage Loan Seller shall deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee or a
Custodian appointed thereby on or before the Closing Date, with a copy to the
Master Servicer within a reasonable period (but in no event more than 60 days)
following the Closing Date, the Mortgage File for each CREI Mortgage Loan. In
addition, the Additional Warranting Party shall deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, with a copy to the Master
Servicer within a reasonable period (but in no event more than 60 days)
following the Closing Date, the Mortgage File for each Morgan Guaranty Mortgage
Loan. If the Mortgage Loan Seller or the Additional Warranting Party, as
applicable, is unable to deliver or cause the delivery of any original Mortgage
Note, such party may deliver a copy of such Mortgage Note, together with a lost
note affidavit, and shall thereby be deemed to have satisfied the document
delivery requirements of this Section 2.01(c). If the Mortgage Loan Seller or
the Additional Warranting Party, as applicable, cannot so deliver, or cause to
be delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii),
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(xi)(A) and (xii) of the definition of "Mortgage File", with evidence of
recording or filing (as the case may be) thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, as the case may be,
the delivery requirements of this Section 2.01(c) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to
have been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple documents and/or
instruments) by the Mortgage Loan Seller or the Additional Warranting Party, as
applicable, to be a true and complete copy of the original thereof submitted
for recording or filing, as the case may be) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to
the Trustee or such Custodian within 180 days of the Closing Date (or within
such longer period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as the Mortgage Loan Seller
or the Additional Warranting Party, as applicable, has provided the Trustee
with evidence of such submission for recording or filing, as the case may be,
or has certified in writing to the Trustee as to the occurrence of such
submission for recording or filing, as the case may be, and is, as certified in
writing to the Trustee no less often than monthly, in good faith attempting to
obtain from the appropriate recording or filing office such original or copy).
If the Mortgage Loan Seller or the Additional Warranting Party, as applicable,
cannot or does not so deliver, or cause to be delivered, as to any Mortgage
Loan, the original of any of the documents and/or instruments referred to in
clauses (iii), (v), and (xi)(B) of the definition of "Mortgage File", because
such document or instrument has been delivered for recording or filing, as the
case may be, the delivery requirements of this Section 2.01(c) shall be deemed
to have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that a copy
of such document or instrument (without evidence of recording or filing
thereon, but certified (which certificate may relate to multiple documents
and/or instruments) by the Mortgage Loan Seller or the Additional Warranting
Party, as applicable, to be a true and complete copy of the original thereof
submitted for recording or filing, as the case may be) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to the Trustee or such Custodian within 180 days of the Closing Date (or within
such longer period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as the Mortgage Loan Seller
or the Additional Warranting Party, as applicable, has provided the Trustee
with evidence of such submission for recording or filing, as the case may be,
or has certified in writing to the Trustee as to the occurrence of such
submission for recording or filing, as the case may be, and is, as certified in
writing to the Trustee no less often than monthly, in good faith attempting to
obtain from the appropriate recording or filing office such original or copy).
If the Mortgage Loan Seller or the Additional Warranting Party, as applicable,
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of the related lender's title insurance policy referred to
in clause (ix) of the definition of "Mortgage File" solely because such policy
has not yet been issued, the delivery requirements of this Section 2.01(c)
shall be deemed to be satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
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that the Mortgage Loan Seller or the Additional Warranting Party, as
applicable, shall have delivered to the Trustee or a Custodian appointed
thereby, on or before the Closing Date, a commitment for title insurance
"marked-up" at the closing of such Mortgage Loan, and the Mortgage Loan Seller
or the Additional Warranting Party, as applicable, shall deliver to the Trustee
or such Custodian, promptly following the receipt thereof, the original related
lender's title insurance policy (or a copy thereof). In addition,
notwithstanding anything to the contrary contained herein, if there exists with
respect to any Group of related Cross-Collateralized Mortgage Loans only one
original of any document referred to in the definition of "Mortgage File"
covering all the Mortgage Loans in such Group, then the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such Group shall be deemed an inclusion of such original in the Mortgage File
for each such Mortgage Loan. None of the Trustee, any Custodian, the Sponsor,
the Master Servicer or the Special Servicer shall in any way be liable for any
failure by the Mortgage Loan Seller or the Additional Warranting Party, as
applicable, to comply with the delivery requirements of this Section 2.01(c).
If any of the endorsements referred to in clause (i) of the definition
of "Mortgage File", any of the assignments of Mortgage referred to in clause
(iii) of the definition of "Mortgage File", any of the assignments of
Assignment of Leases referred to in clause (v) of the definition of "Mortgage
File", or any of the assignments of Security Agreement referred to in clause
(vii) of the definition of "Mortgage File" are delivered to the Trustee in
blank, the Trustee shall be responsible for completing the related endorsement
or assignment in the name of the Trustee (in such capacity), and the Trustee
shall be entitled to charge the Mortgage Loan Seller or the Additional
Warranting Party, as applicable, for any reasonable expense incurred by it in
so doing.
(d) To the extent not previously delivered for recording by the
Mortgage Loan Seller or the Additional Warranting Party, as applicable, the
Trustee, at the expense of the Mortgage Loan Seller or the Additional
Warranting Party, as applicable, shall, as to each Mortgage Loan, promptly (and
in any event within 60 days of the Closing Date or the date received by it,
whichever is later) submit or cause to be submitted for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate, each assignment referred to in
clauses (iii) and (v) of the definition of "Mortgage File", and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of the definition of "Mortgage
File", that is delivered to it. Each such assignment shall reflect that it
should be returned by the public recording office to the Trustee or its
designee following recording, and each such UCC-2 and UCC-3 shall reflect that
the file copy thereof should be returned to the Trustee following filing. At
such time as such assignments, UCC-2s and UCC-3s have been returned to the
Trustee, the Trustee shall promptly forward a copy of each thereof to the
Master Servicer. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Mortgage Loan Seller, in the case of a CREI Mortgage Loan, and the Additional
Warranting Party, in the case of a Morgan Guaranty Mortgage Loan, shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall promptly
thereafter deliver the substitute or corrected document to the Trustee. The
Trustee shall thereupon submit the substitute
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or corrected document, or cause such to be submitted, for recording or filing,
as appropriate, at the expense of the Mortgage Loan Seller or the Additional
Warranting Party, as applicable.
(e) All documents and records in the Mortgage Loan Seller's or the
Additional Warranting Party's possession (or under its control) relating to the
Mortgage Loans that are not required to be a part of a Mortgage File in
accordance with the definition thereof, together with all Escrow Payments and
Reserve Funds in the possession of the Mortgage Loan Seller or the Additional
Warranting Party (or under its control) with respect to the Mortgage Loans,
shall be delivered or caused to be delivered by the Mortgage Loan Seller or the
Additional Warranting Party, as the case may be, to the Master Servicer (with
copies of such documents to the Special Servicer), within 10 days of the
Closing Date, and shall be retained by the Master Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders.
(f) The Mortgage Loan Seller shall, as to each CREI Mortgage Loan that
is secured by the interest of the related Mortgagor under a Ground Lease, and
the Additional Warranting Party shall, as to each Morgan Guaranty Mortgage Loan
that is secured by the interest of the related Mortgagor under a Ground Lease,
in each case at its own expense, promptly (and in any event within 45 days of
the Closing Date) notify the related ground lessor of the transfer of such
Mortgage Loan to the Trust pursuant to this Agreement and inform such ground
lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer on behalf of the Trustee.
SECTION 2.02. Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to any
exceptions noted on the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule III, to the provisions of Section 2.01 and to the
further review provided for in this Section 2.02, of, with respect to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee (in such
capacity), an original or a copy of the Mortgage (with evidence of recording
thereon), and an original assignment of such Mortgage executed in favor of the
Trustee (in such capacity) and of all other assets included in REMIC I which
have been delivered to the Trustee, in good faith and without notice of any
adverse claim, and declares that it or a Custodian on its behalf holds and will
hold the documents delivered or caused to be delivered by the Mortgage Loan
Seller and the Additional Warranting Party in respect of the Mortgage Loans,
and that it holds and will hold such other assets included in REMIC I, in trust
for the exclusive use and benefit of all present and future Certificateholders.
(b) Within 90 days of the Closing Date (or, in the case of any
Mortgage Loan as to which a Servicing Transfer Event has occurred during such
90-day period of which event the Trustee has notice, within the shorter of 90
days of the Closing Date and five Business Days of the Trustee's receiving such
notice), the Trustee or a Custodian on its behalf shall review each of the
documents delivered or caused to be delivered by the Mortgage Loan Seller or
the Additional Warranting Party with respect to each Mortgage Loan pursuant to
Section 2.01(c); and, promptly
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following such review, the Trustee shall, subject to Section 2.02(d), certify
in writing to each of the Sponsor, the Master Servicer, the Special Servicer,
the Mortgage Loan Seller and the Additional Warranting Party that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full), and except as specifically identified in any exception
report annexed to such certification, (i) all documents specified in clauses
(i) through (iii), (ix) and, if the Mortgage Loan Schedule specifies that the
related Mortgagor has a leasehold interest in the related Mortgaged Property,
(xiii) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf, or the Mortgage Loan Seller or the
Additional Warranting Party, as applicable, has otherwise satisfied the
delivery requirements in respect of such documents in accordance with Section
2.01(c), (ii) all documents received by it or any Custodian in respect of such
Mortgage Loan have been reviewed by it or by a Custodian on its behalf and
appear regular on their face and relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (ii), (iv) and (vi)(B) of the definition of "Mortgage Loan Schedule" is
correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
documents relating to the Mortgage Loans received thereby subsequent to the
Closing Date; and on or about every 90 days until the earlier of (i) the second
anniversary of the Closing Date and (ii) the date on which all exceptions are
addressed, the Trustee shall, subject to Section 2.02(d), certify in writing to
each of the Sponsor, the Master Servicer, the Special Servicer, the Mortgage
Loan Seller and the Additional Warranting Party that as to each Mortgage Loan
listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or otherwise liquidated), and except as specifically identified in any
exception report annexed to such certification, (i) all documents specified in
clauses (i), (ii), (ix) and, if the Mortgage Loan Schedule specifies that the
related Mortgagor has a leasehold interest in the related Mortgaged Property,
(xiii) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf, or the Mortgage Loan Seller or the
Additional Warranting Party, as applicable, has otherwise satisfied the
delivery requirements in respect of such documents in accordance with Section
2.01(c), (ii) it or a Custodian on its behalf has received either the original
or copy of each of the assignments specified in clauses (iii) and (v) of the
definition of "Mortgage File" that were delivered by the Mortgage Loan Seller
or the Additional Warranting Party, with evidence of recording thereon, (iii)
all documents received by it or any Custodian in respect of such Mortgage Loan
have been reviewed by it or by such Custodian on its behalf and appear regular
on their face and relate to such Mortgage Loan, and (iv) based on the
examinations referred to in subsection (b) above and this subsection (c) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii), (iv) and
(vi)(B) of the definition of "Mortgage Loan Schedule", is correct.
(d) It is herein acknowledged that, notwithstanding any other
provision hereof, neither the Trustee nor any Custodian is under any duty or
obligation (i) to determine whether any of the documents specified in clauses
(iv) through (viii), (x) through (xii) and (xiv) through (xvi) of the
definition of "Mortgage File" exist (except to the extent that the Trustee
certifies as to its possession of any such document) or are required to be
delivered by the Mortgage Loan Seller or the
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Additional Warranting Party, as applicable, in respect of any Mortgage Loan or
(ii) to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Mortgage Loans delivered to it to
determine that the same are genuine, enforceable, in recordable form or
appropriate for the represented purpose, or that they are other than what they
purport to be on their face.
In performing the reviews contemplated by subsections (a), (b) and (c)
above, the Trustee may conclusively rely on the Mortgage Loan Seller or the
Additional Warranting Party as to the purported genuineness of any such
document and any signature thereon. It is understood that the scope of the
Trustee's review of the Mortgage Files is limited to the matters specifically
set forth in subsections (a), (b) and (c) above.
(e) If, in the process of reviewing the documents delivered or caused
to be delivered by the Mortgage Loan Seller and the Additional Warranting Party
pursuant to Section 2.01(c), the Trustee or any Custodian discovers that any
document required to have been delivered pursuant to Section 2.01(c) has not
been so delivered, or discovers that any of the documents that were delivered
has not been properly executed, contains information that does not conform in
any material respect with the corresponding information set forth in the
Mortgage Loan Schedule, or is defective on its face (each, including, without
limitation, that a document is missing, a "Document Defect"), or if, at any
other time, the Trustee or any other party hereto discovers a Document Defect
in respect of any Mortgage Loan, the party discovering such Document Defect
shall promptly so notify each of the other parties hereto. If and when such
party is notified of or discovers any error in the Mortgage Loan Schedule, the
Mortgage Loan Seller, if a CREI Mortgage Loan is affected, or the Additional
Warranting Party, if a Morgan Guaranty Mortgage Loan is affected, shall
promptly correct such error and distribute a new, corrected Mortgage Loan
Schedule to each of the other parties hereto. Such new, corrected Mortgage Loan
Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule.
SECTION 2.03. Mortgage Loan Seller's and Additional Warranting Party's
Repurchase of Mortgage Loans for Document Defects and
Certain Breaches of Representations and Warranties.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Responsible Party, of a Document Defect in respect of any Mortgage Loan or
a breach of any representation or warranty set forth in Section 2.05(c) in
respect of any Mortgage Loan, which Document Defect or breach, as the case may
be, materially and adversely affects the value of such Mortgage Loan or the
interests of the Certificateholders therein, the Responsible Party shall cure
such Document Defect or breach, as the case may be, in all material respects or
repurchase (or, if the Responsible Party is the Mortgage Loan Seller, cause an
Affiliate to purchase) the affected Mortgage Loan at the applicable Purchase
Price by deposit of such Purchase Price into the Collection Account and
delivery to the Trustee of a written certification that such deposit has been
made; provided that, if the Responsible Party certifies to the Trustee that (i)
such Document Defect or breach is not reasonably susceptible of correction or
cure within such 90-day period and is susceptible of correction
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or cure within an additional 90-day period, (ii) such Document Defect or breach
does not cause the related Mortgage Loan to fail to be a "qualified mortgage"
or a "qualified replacement mortgage" within the meaning of Section 860G of the
Code, and (iii) the Responsible Party is diligently prosecuting the correction
of such Document Defect or breach , then such Responsible Party shall have an
additional period of 90 days in which to correct or cure such Document Defect
or breach, or, if ultimately unable to do so, to effect such repurchase.
Notwithstanding the immediately preceding sentence, within 90 days of the
earlier of discovery or receipt of notice by the Responsible Party that there
is a breach of the representation and warranty set forth in Section
2.05(c)(xxxi) (i.e., that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code), the
Responsible Party shall repurchase such Mortgage Loan at the applicable
Purchase Price by deposit of such Purchase Price into the Collection Account
and delivery to the Trustee of a written certification that such deposit has
been made.
(b) The Additional Warranting Party shall use its best efforts to
cause the Mortgagor under the Brunswig Square Office Building Loan to enter
into, and the Master Servicer and the Trustee are hereby authorized to enter
into with such Mortgagor, no later than the 90th day following the Closing
Date, an amendment whereby the Defeasance Option with respect to such Mortgage
Loan may not be exercised prior to the second anniversary of the Closing Date.
If no such modification is entered into as of the 90th day following the
Closing Date, and if the Mortgagor under the Brunswig Square Office Building
Loan notifies any party hereto of its intention to exercise, prior to the
second anniversary of the Closing Date, the Defeasance Option in respect of
such Mortgage Loan, such party hereto shall promptly notify the other parties
hereto, and the Additional Warranting Party shall, on or before the date that
such Defeasance Option is exercised, repurchase such Mortgage Loan at the
applicable Purchase Price by deposit of such Purchase Price into the Collection
Account and delivery to the Trustee of a written certification that such
deposit has been made.
(c) In connection with any repurchase of a Mortgage Loan contemplated
by this Section 2.03, the Trustee, the Master Servicer and the Special Servicer
shall each tender or cause to be tendered to the Responsible Party, upon
delivery to each of the Trustee, the Master Servicer and the Special Servicer
of a receipt executed by the Responsible Party, all portions of the Mortgage
File and other documents and funds pertaining to such Mortgage Loan possessed
by it (or any Custodian or Sub-Servicer on its behalf), and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to or at the
direction of the Responsible Party, in the same manner. The form, sufficiency
and expense of all such instruments and certificates shall be the
responsibility of the Responsible Party.
(d) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(c) hereof. If the Responsible Party defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 2.03(a)
or 2.03(b) hereof, or disputes its obligation to repurchase any Mortgage Loan
in accordance with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its right to
reimbursement pursuant to Section 8.05(b), shall
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take such action as may be appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. If it is judicially determined or subsequently agreed that the
Responsible Party is required to repurchase such Mortgage Loan under Section
2.03(a) or 2.03(b) hereof, the Responsible Party shall reimburse the Trustee
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement, and otherwise the Trustee's right of reimbursement shall be
limited to amounts on deposit in the Distribution Account from time to time in
accordance with Section 8.05(b) and to such other sources of security and
indemnity as shall have been offered to the Trustee by the Certificateholders.
SECTION 2.04. Representations and Warranties of the Sponsor.
(a) The Sponsor hereby represents and warrants to each of the other
parties to this Agreement and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Sponsor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Sponsor, and
the performance and compliance with the terms of this Agreement by the
Sponsor, will not violate the Sponsor's certificate of incorporation or
bylaws or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) The Sponsor has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Sponsor, enforceable against the Sponsor in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Sponsor is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
the Sponsor's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Sponsor to perform its
obligations under this Agreement or the financial condition of the Sponsor.
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(vi) The transfer of the Mortgage Loans to the Trustee as contemplated
herein requires no regulatory approval, other than any such approvals as
have been obtained, and is not subject to any bulk transfer or similar law
in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Sponsor's
knowledge, threatened against the Sponsor which would prohibit the Sponsor
from entering into this Agreement or, in the Sponsor's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Sponsor to perform its obligations under this Agreement
or the financial condition of the Sponsor.
(viii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Sponsor of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously
have been obtained.
(b) Upon discovery by any of the parties hereto of a breach of any of
the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.05. Representations and Warranties of the Mortgage Loan
Seller and the Additional Warranting Party.
(a) The Mortgage Loan Seller hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Mortgage Loan Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Mortgage Loan
Seller, and the performance and compliance with the terms of this Agreement
by the Mortgage Loan Seller, will not violate the Mortgage Loan Seller's
certificate of incorporation and by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Mortgage
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Loan Seller, enforceable against the Mortgage Loan Seller in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Mortgage Loan Seller to perform its obligations under this Agreement
or the financial condition of the Mortgage Loan Seller.
(vi) No litigation is pending or, to the best of the Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller which would
prohibit the Mortgage Loan Seller from entering into this Agreement or, in
the Mortgage Loan Seller's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Mortgage Loan
Seller to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Mortgage Loan Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained.
(b) The Additional Warranting Party hereby represents and warrants to
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Additional Warranting Party is a banking corporation
organized, validly existing and in good standing under the laws of the
State of New York.
(ii) The execution and delivery of this Agreement by the Additional
Warranting Party, and the performance and compliance with the terms of this
Agreement by the Additional Warranting Party, will not violate the
Additional Warranting Party's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable
to it or any of its assets.
(iii) The Additional Warranting Party has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the
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execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Additional Warranting Party, enforceable
against the Additional Warranting Party in accordance with the terms
hereof, subject to (A) applicable receivership, conservatorship,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Additional Warranting Party is not in violation of, and its
execution and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Additional Warranting Party's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Additional Warranting Party to perform its
obligations under this Agreement or the financial condition of the
Additional Warranting Party.
(vi) No litigation is pending or, to the best of the Additional
Warranting Party's knowledge, threatened against the Additional Warranting
Party which would prohibit the Additional Warranting Party from entering
into this Agreement or, in the Additional Warranting Party's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Additional Warranting Party to perform its obligations
under this Agreement or the financial condition of the Additional
Warranting Party.
(vii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Additional Warranting Party of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained.
(c) The Mortgage Loan Seller hereby represents and warrants (and,
accordingly, is the "Representing Party" in respect of each such representation
and warranty so made) with respect to (but solely with respect to) each CREI
Mortgage Loan, and the Additional Warranting Party hereby represents and
warrants (and, accordingly, is the "Representing Party" in respect of each such
representation and warranty so made) with respect to (but solely with respect
to) each Morgan Guaranty Mortgage Loan, in each case to the other parties
hereto and for the benefit of the Certificateholders, as of the date
hereinbelow specified or, if no such date is specified, as of the Closing Date,
that:
(i) Immediately prior to the transfer thereof by the Representing
Party to the Mortgage Loan Seller (in the case of the Additional Warranting
Party) or the Trustee (in the
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case of the Mortgage Loan Seller), the Representing Party was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan
(other than, in certain cases, the right of the Master Servicer or a
Sub-Servicer to master service or primary service such Mortgage Loan).
(ii) The Representing Party had full right and authority to sell,
assign and transfer such Mortgage Loan to the Mortgage Loan Seller (in the
case of the Additional Warranting Party) or the Trustee (in the case of the
Mortgage Loan Seller).
(iii) The information pertaining to such Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects as
of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date or at any time
during the twelve-month period prior thereto, more than 30 days delinquent
in respect of any monthly payment of principal and/or interest required
thereunder, without giving effect to any applicable grace period.
(v) Each Mortgage securing such Mortgage Loan constitutes a valid
first lien upon the Mortgagor's interest in the related Mortgaged Property,
including, without limitation, all buildings located thereon and all
fixtures attached thereto, subject only to (and such Mortgaged Property is
free and clear of all encumbrances and liens having priority over the lien
of such Mortgage, except for) (A) the lien of current real property taxes
and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public record,
(C) the right of tenants (whether under ground leases or space leases) at
the Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such leases),
(D) exceptions and exclusions specifically referred to in the lender's
title insurance policy issued or, as evidenced by a "marked-up" commitment,
to be issued in respect of such Mortgage Loan and (E) if such Mortgage Loan
is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the exceptions set forth in the
foregoing clauses (A), (B), (C), (D) and (E) collectively, "Permitted
Encumbrances"). Such Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage(s), the
current use or value of the related Mortgaged Property, or the current
ability of such Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan.
(vi) The lien of each related Mortgage is insured by an ALTA lender's
title insurance policy, or its equivalent as adopted in the applicable
jurisdiction, issued by a nationally recognized title insurance company,
insuring the originator of such Mortgage Loan, its successors and assigns,
as to the first priority lien of the Mortgage in the original principal
amount of such Mortgage Loan after all advances of principal, subject only
to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of any Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for
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title insurance "marked-up" at the closing of such Mortgage Loan).
Such title policy (or, if it has yet to be issued, the coverage to be
provided thereby) is in full force and effect, all premiums thereon have
been paid and, to the Representing Party's knowledge as of the Closing
Date, no material claims have been made thereunder and no claims have been
paid thereunder (and the Representing Party has not received notice of any
material claims having been made or paid thereunder). No holder of the
related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such title policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such title policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer.
(vii) The Representing Party has not waived any material default,
breach, violation or event of acceleration existing under the related
Mortgage or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to such
Mortgage Loan.
(ix) The Representing Party has not received actual notice that (A)
there is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) there is any material
damage at the related Mortgaged Property that materially and adversely
affects the value of such Mortgaged Property (except in such case where an
escrow of funds exists, or an effective insurance policy provides coverage,
sufficient to effect the necessary repairs and maintenance).
(x) At origination, such Mortgage Loan complied in all material
respects with all requirements of federal, state and local laws, including,
without limitation, laws pertaining to usury, relating to the origination
of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully disbursed, and
there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan and all
other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan are each the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency legislation), enforceable in accordance with their
respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, redemption, fraudulent conveyance,
receivership, moratorium or other laws relating to or affecting the rights
of creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
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(xiii) The related Mortgaged Property is: (A) if a commercial
property, insured by a fire and extended perils insurance policy, issued by
an insurer meeting the requirements of such Mortgage Loan in an amount not
less than the greater of (1) the replacement cost and (2) the amount
necessary to avoid the operation of any co-insurance provisions with
respect to such Mortgaged Property, and is also covered (except if such
Mortgaged Property is operated as a mobile home park), by rental insurance
in an amount equal to the gross rentals for at least a 12-month period; no
such insurance policy provides that it may be cancelled, endorsed, altered
or reissued to effect a change in coverage unless such insurer shall have
first given the mortgagee under such Mortgage Loan thirty days' prior
written notice, and no notice has been received as of the date hereof; all
premiums required to be paid on such policy have been paid; the related
Mortgage obligates the Mortgagor to maintain all such insurance and, at the
Mortgagor's failure to do so, authorizes the mortgagee under such Mortgage
Loan to purchase such insurance at the Mortgagor's cost and expense and to
seek reimbursement from such Mortgagor; and (B) if a multifamily property,
insured by a fire and extended perils insurance policy, issued by an
insurer meeting the requirements of such Mortgage Loan and covering rent
loss and such other hazards, casualties, liabilities and contingencies the
Master Servicer shall require and in such amounts and for such periods as
the Master Servicer shall require; at least thirty days prior to the
expiration date of such policy (or such other time period required by law),
the related Mortgage requires the Mortgagor to deliver to the mortgagee
under such Mortgage Loan a renewal policy in form satisfactory to the
Master Servicer; all premiums required to be paid on such policy have been
paid; the Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the
mortgagee to purchase such insurance at the Mortgagor's cost and expense
and to seek reimbursement from such Mortgagor. In addition, all insurance
coverage required under the related Mortgage is in full force and effect
with respect to the related Mortgaged Property, and if the related
Mortgaged Property is located in a federally designated special flood
hazard area, the related Mortgagor is required to maintain flood insurance
in respect thereof (exclusive of any parking lot or unused or undeveloped
portion thereof).
(xiv) One or more environmental site assessments (or an update of a
previously conducted assessment) were performed with respect to the related
Mortgaged Property (in no such case more than 13 months prior to the
Closing Date), and the Representing Party, having made no independent
inquiry other than reviewing the resulting report(s) and/or employing an
environmental consultant to perform the assessment(s) referenced herein,
has no knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed in
the related report(s).
(xv) Except as indicated on the Mortgage Loan Schedule, such Mortgage
Loan is not cross-collateralized with other Mortgage Loans in the Mortgage
Pool. Such Mortgage Loan is not cross-collateralized with a mortgage loan
outside the Mortgage Pool.
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(xvi) The terms of the Mortgage Note and Mortgage(s) for such Mortgage
Loan have not been impaired, waived, altered or modified in any material
respect.
(xvii) There are no delinquent taxes, ground rents, water charges,
sewer rents, or other similar outstanding charges affecting the related
Mortgaged Property that are not otherwise covered by an escrow of funds
sufficient to pay such charges.
(xviii) The interest of the Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold interest in real
property.
(xix) Such Mortgage Loan is a whole loan and not a participation
interest.
(xx) The assignment of the related Mortgage to the Trustee constitutes
the legal, valid and binding assignment of such Mortgage from the relevant
assignor to the Trustee, and the assignment of the related Assignment of
Leases, if any, or of any other agreement executed in connection with such
Mortgage Loan to the Trustee constitutes the legal, valid and binding
assignment thereof from the relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession, or under
the control of the Representing Party or its agents (which shall include
the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan and as of
the Closing Date, the related Mortgaged Property was and is free and clear
of any mechanics' and materialmen's liens or liens in the nature thereof
which create a lien prior to that created by the related Mortgage(s).
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan lies outside the boundaries and
building restriction lines of such property to any material extent; no
improvements on adjoining properties materially encroach upon such
Mortgaged Property to any material extent; and no improvement located on or
forming part of such Mortgaged Property is in material violation of any
applicable zoning laws or ordinances (except to the extent that they may
constitute legal non-conforming uses).
(xxiv) To the extent required under applicable law as of the Closing
Date and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located at all
times when it held the Mortgage Loan.
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(xxv) There is no material default, breach or event of acceleration
existing under the related Mortgage or Mortgage Note, and the Representing
Party has not received actual notice of any event (other than payments due
but not yet delinquent) that, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however, that
this representation and warranty does not cover any default, breach or
event of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Representing
Party in any of paragraphs (iv), (ix), (xiii), (xiv), (xvii), (xxi),
(xxiii), (xxix), (xl) and (xlii) of this Section 2.05(c).
(xxvi) If such Mortgage Loan is secured in whole or in part by the
interest of a Mortgagor under a Ground Lease and by the related fee
interest, such fee interest is encumbered by the related Mortgage, and the
related Mortgage does not by its terms provide that it will be subordinated
to the lien of any mortgage or any other lien upon such fee interest.
(xxvii) Such Mortgage Loan does not contain any equity participation
by the lender, provide for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged Property or
provide for the negative amortization of interest, except that, in the case
of a Hyper-Amortization Loan, such Mortgage Loan provides that during the
period commencing on the related Anticipated Repayment Date and continuing
until such Mortgage Loan is paid in full, additional interest shall accrue
(and may be compounded) on such Mortgage Loan and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full.
(xxviii) No holder of such Mortgage Loan has, to the Representing
Party's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of
the Mortgage Loan proceeds, whichever is later, to the date which preceded
by 30 days the first Due Date under the related Mortgage Note.
(xxix) To the Representing Party's knowledge, based on due diligence
customarily performed in the origination of comparable mortgage loans, as
of the date of origination of such Mortgage Loan, (A) the related Mortgagor
was in possession of all material licenses, permits and authorizations
required by applicable laws for the ownership and operation of the related
Mortgaged Property as it was then operated and (B) all such licenses,
permits and authorizations were valid and in full force and effect.
(xxx) The related Mortgage(s) or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in clause (c)(xii) above) such as to
render the rights and remedies of the holders thereof
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adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
(xxxi) Such Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code.
(xxxii) No fraud with respect to such Mortgage Loan has taken place on
the part of the Representing Party in connection with the origination of
such Mortgage Loan.
(xxxiii) The terms of such Mortgage Loan provide or, at lender's
option, permit, and the terms of this Agreement and any Sub-Servicing
Agreement to which such Mortgage Loan is subject provide for purposes of
calculating distributions on the Certificates and additional compensation
payable to the Master Servicer, the Special Servicer and any related Sub-
Servicer, that payments on and proceeds of such Mortgage Loan will be
applied to principal and interest at the related Mortgage Rate (excluding,
in the case of a Hyper-Amortization Loan after its Anticipated Repayment
Date, Excess Interest) due and owing at the time such payments or proceeds
are received, prior to being applied to any Default Charges, assumption
fees and modification fees then due and owing.
(xxxiv) The origination, servicing and collection practices used with
respect to such Mortgage Loan have been in all material respects legal and
have met generally accepted servicing standards for similar commercial and
multifamily mortgage loans.
(xxxv) Any related Assignment of Leases (either as a separate
instrument or incorporated into the related Mortgage) creates in favor of
the holder, a valid, perfected and (subject to the exceptions set forth in
clause (c)(xii) above) enforceable lien of the same priority as the related
Mortgage, in the property and rights described therein; provided that the
enforceability of such lien is subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws affecting the
enforcement of creditors' rights generally, and by the application of the
rules of equity. The Representing Party has the full right to assign to the
Trustee such Assignment of Leases and the lien created thereby as described
in the immediately preceding sentence. No Person other than the Mortgagor
owns any interest in any payments due under the related leases. The related
Mortgage or such Assignment of Leases provides for the appointment of a
receiver for rents or allows the mortgagee to enter into possession to
collect rent or provides for rents to be paid directly to the mortgagee in
the event of a default.
(xxxvi) If the related Mortgaged Property securing such Mortgage Loan
is encumbered by secured subordinated debt, then either (A) the subordinate
debt constitutes a "cash flow" mortgage loan (that is, payments are
required to be made thereon only to the extent that certain net cash flow
from the related Mortgaged Property (calculated in accordance with the
related loan documents) is sufficient after payments on such Mortgage Loan
have been made and certain expenses have been paid) or (B) the holder of
the
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subordinate debt has agreed not to foreclose on the related Mortgaged
Property so long as such Mortgage Loan is outstanding and the Special
Servicer on behalf of the Trust is not pursuing a foreclosure action.
(xxxvii) If such Mortgage Loan is secured by a mortgage lien on the
applicable Mortgagor's leasehold interest in any real property under a
Ground Lease (but not by a mortgage lien on the fee interest in such real
property), such Ground Lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the mortgagee if it becomes the
owner of such leasehold interest) that extends not less than 10 years
beyond the stated maturity of the related Mortgage Loan.
(xxxviii) The related Mortgage and/or Mortgage Note provides that the
related Mortgagor shall be fully and personally liable for all liabilities,
costs, losses, damages, expenses or claims suffered or incurred by the
mortgagee by reason of or in connection with and to the extent of any
material fraud or intentional and material misrepresentation by the related
Mortgagor in connection with such Mortgage Loan.
(xxxix) If such Mortgage Loan is a Hyper-Amortization Loan, it
commenced amortizing on its initial scheduled Due Date and provides that:
(i) except in the case of the Mortgage Loan identified on the Mortgage Loan
Schedule by control number C033 and property name Minneapolis City Center,
its Mortgage Rate will increase by no more than two percentage points in
connection with the passage of its Anticipated Repayment Date; (ii) its
Anticipated Repayment Date is not less than seven years following the
origination of such Mortgage Loan; (iii) no later than the related
Anticipated Repayment Date, if it has not previously done so, except in the
case of the Mortgage Loan identified on the Mortgage Loan Schedule by
control number C033 and property name Minneapolis City Center, the related
Mortgagor is required to enter into a "lockbox agreement" whereby all
revenue from the related Mortgaged Property shall be deposited directly
into a designated account controlled by the Master Servicer; (iv) any cash
flow from the related Mortgaged Property that is applied to amortize such
Mortgage Loan following its Anticipated Repayment Date shall, to the extent
such net cash flow is in excess of the Monthly Payment payable therefrom,
be net of budgeted and discretionary (servicer approved) capital
expenditures; and (v) if the property manager for the related Mortgaged
Property can be removed by or at the direction of the lender on the basis
of a debt service coverage test, the subject debt service coverage ratio
shall be calculated without taking account of any increase in the related
Mortgage Rate on such Mortgage Loan's Anticipated Repayment Date. No
Hyper-Amortization Loan provides that the property manager for the related
Mortgaged Property can be removed by or at the direction of the lender
solely because of the passage of the related Anticipated Repayment Date.
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(xl) At origination of such Mortgage Loan, the related Mortgagor was
not, to the best of the Representing Party's actual knowledge, a debtor in
any state or federal bankruptcy or insolvency proceeding.
(xli) If such Mortgage Loan is secured by the interest of the related
Mortgagor under a Ground Lease, then, as of the origination of such
Mortgage Loan, such Ground Lease was in full force and effect and, to the
Representing Party's actual knowledge, no material default existed under
such Ground Lease.
(xlii) The Representing Party has no actual knowledge of any pending
litigation or other legal proceedings involving the related Mortgagor or
the related Mortgaged Property that can reasonably be expected to
materially interfere with the security intended to be provided by the
related Mortgage, the current use of the related Mortgaged Property, or the
current ability of the Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan.
(xliii) If such Mortgage Loan had a Cut-off Date Balance greater than
3.0% of the Initial Pool Balance, the related Mortgagor has covenanted in
its organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property, Mortgaged
Properties securing other Mortgage Loans and assets incidental to its
ownership and operation of such Mortgaged Property or Properties.
(xliv) Except in cases where the related Mortgage Note or the related
Mortgage provide for (A) a release of a portion of the related Mortgaged
Property, which portion was not considered material for purposes of
underwriting the Mortgage Loan or (B) a release of a portion of the related
Mortgaged Property conditioned upon the satisfaction of certain
underwriting and legal requirements and/or the payment of a release price,
neither the related Mortgage Note nor the related Mortgage requires the
mortgagee to release all or any material portion of the related Mortgaged
Property from the lien of the related Mortgage except upon payment in full
of all amounts due under the related Mortgage Loan.
(xlv) Such Mortgage Loan does not permit the related Mortgaged
Property to be encumbered subsequent to the Closing Date by any lien junior
to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof.
(xlvi) With respect to any Mortgage Loan that is a Defeasance Loan,
the related Mortgage Note or Mortgage provides that, except as described in
the next sentence, the Defeasance Option is not exercisable prior to a date
that is at least two years following the Startup Day for each of REMIC I,
REMIC II and REMIC III and that the Mortgagor will not be liable for any
shortfalls from the Defeasance Collateral or otherwise become subject to
recourse liability with respect to the Defeasance Loan except to the extent
so liable prior to defeasance, and, further, contains no provision that
would result in a new Mortgagor on the Defeasance Loan without the consent
of the related mortgagee (unless such new Mortgagor
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is acquiring the Mortgaged Property that was the initial security for
the Defeasance Loan). As of the Closing Date, the Brunswig Square Office
Building Loan permits the related Mortgagor to exercise the Defeasance
Option at any time.
(xlvii) If the Mortgage in respect of any Mortgage Loan is a deed of
trust, (A) a trustee, duly qualified under applicable law to serve as such,
is properly designated and serving under such Mortgage, and (B) except in
connection with a trustee's sale after default by the related Mortgagor, no
fees or expenses are payable to such trustee by the Representing Party or
any subsequent mortgagee.
(xlviii) The related Mortgage Note is not secured by any collateral
that is not included in the Trust Fund.
(xlix) If such Mortgage Loan is secured by the interest of the related
Mortgagor as a lessee under a Ground Lease covering all or any material
portion of the related Mortgaged Property, but not by the related fee
interest in such Mortgaged Property or portion thereof:
(A) Either (1) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest
of the holder of the Mortgage Loan or (2) the related ground
lessor has granted the holder of the Mortgage Loan the right
to cure any default or breach by the ground lessee (provided
that the mortgagee under the Mortgage Loan has provided the
ground lessor with notice of its lien in accordance with the
terms of such Ground Lease). Upon the foreclosure of such
Mortgage Loan or acceptance of a deed in lieu thereof
(provided that the mortgagee under the Mortgage Loan has
provided the ground lessor with notice of its lien in
accordance with the terms of such Ground Lease), the related
Ground Lease is assignable to the mortgagee under such
Mortgage Loan and its assigns without the consent of the
ground lessor thereunder (or such consent, if required,
cannot be unreasonably withheld);
(B) Such Ground Lease, or an estoppel letter or other agreement
received by the mortgagee under such Mortgage Loan from the
ground lessor, or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage;
and there has been no material change in the terms of such
Ground Lease since its recordation, with the exception of
written instruments which are a part of the related Mortgage
File;
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(C) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related fee interest and
Permitted Encumbrances;
(D) Such Ground Lease, or an estoppel letter or other agreement
received by the mortgagee under such Mortgage Loan from the
ground lessor, requires the ground lessor thereunder to give
notice of any default by the lessee to the mortgagee under
such Mortgage Loan (provided that such mortgagee has
provided the ground lessor with notice of its lien in
accordance with the provisions of such Ground Lease), and
such Ground Lease, or an estoppel letter or other agreement
received by such mortgagee from the ground lessor, further
provides that (provided that the mortgagee under the
Mortgage Loan has provided the ground lessor with notice of
its lien in accordance with the terms of such Ground Lease)
no notice of termination given under such Ground Lease is
effective against the mortgagee unless a copy has been
delivered to such mortgagee in the manner described in such
Ground Lease;
(E) Except in the case of the Mortgage Loans identified on the
Mortgage Loan Schedule by control numbers C010 (property
name Old City Hall), C130 (property name Comfort Inn -
Jackson) and C134 (property name Radisson-Airport Hotel, the
"Radisson Airport Loan"), such Ground Lease, or an estoppel
letter or other agreement received by the mortgagee from the
ground lessor, requires the ground lessor to enter into a
new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding
(provided that the mortgagee under the Mortgage Loan has
provided the ground lessor with notice of its lien in
accordance with the terms of such Ground Lease); and in the
case of the Mortgage Loan identified on the Mortgage Loan
Schedule by control number 130 (property name Comfort
Inn-Jackson), the related Ground Lease requires the ground
lessor to enter into a new lease with the mortgagee under
such Mortgage Loan solely upon termination of such Ground
Lease for default (provided that the mortgagee under the
Mortgage Loan has provided the ground lessor with notice of
its lien in accordance with the terms of such Ground Lease);
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(F) Except in the case of the Radisson Airport Hotel Loan, under
the terms of such Ground Lease, or an estoppel letter or
other agreement received by the mortgagee under the Mortgage
Loan from the ground lessor, and the related Mortgage, taken
together (provided that the mortgagee under the Mortgage
Loan has provided the ground lessor with notice of its lien
in accordance with the terms of such Ground Lease), any
related insurance proceeds (other than in respect of a total
or substantially total loss or taking) will be applied
either (1) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration
progresses (except in such cases where the Ground Lease
contains a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or
(2) to the payment of the outstanding principal balance of
such Mortgage Loan together with any accrued interest
thereon; and
(G) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender.
(l) Neither the related Mortgage Note nor the related Mortgage contain
provisions limiting the right or ability of the Representing Party to
assign, transfer and convey such documents.
The Mortgage Loan Seller hereby represents and warrants, as of the
Closing Date, to the other parties hereto and for the benefit of the
Certificateholders (and, accordingly, is the "Representing Party" with respect
to such representation and warranty so made) that, assuming the truth and
accuracy of the representations and warranties made by the Additional
Warranting Party with respect to the Morgan Guaranty Mortgage Loans pursuant to
paragraphs (i) and (ii) of this Section 2.05(c), immediately prior to the
transfer of each Morgan Guaranty Mortgage Loan by the Mortgage Loan Seller to
the Trustee, the Mortgage Loan Seller was the sole owner and holder of each
such Mortgage Loan, free and clear of any and all liens, encumbrances and other
interests on, in or to each such Mortgage Loan (other than, in certain cases,
the right of a Sub-Servicer to primary service such Mortgage Loan), and the
Mortgage Loan Seller had full right and authority to sell, assign and transfer
such Mortgage Loan to the Trustee.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of the
respective Mortgage Files to the Trustee or a Custodian on its behalf and shall
inure to the benefit of the Persons for whose benefit they were made for so
long as the Trust remains in existence, notwithstanding any restrictive or
qualified endorsement or assignment. Upon discovery by any of the parties
hereto of a breach of any of the representations
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and warranties set forth in subsection (a) or (b) above which materially and
adversely affects the interests of the Certificateholders or any party hereto
or a breach of any of the representations and warranties set forth in
subsection (c) above which materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto. It is further understood and agreed that the Mortgage Loan
Seller makes no representations or warranties with regard to the Morgan
Guaranty Mortgage Loans (except as set forth in the last paragraph of Section
2.05(c) above) and that the Mortgage Loan Seller has no obligation to cure any
breach of any representation or warranty made by the Additional Warranting
Party with respect to a Morgan Guaranty Mortgage Loan, nor to repurchase any
Morgan Guaranty Mortgage Loan (except in connection with any breach of the
representation and warranty made by the Mortgage Loan Seller in the last
paragraph of Section 2.05(c) above). It is further understood and agreed that
the Additional Warranting Party makes no representations or warranties with
regard to the CREI Mortgage Loans and that the Additional Warranting Party has
no obligation to cure any breach of any representation or warranty made by the
Mortgage Loan Seller with respect to a CREI Mortgage Loan nor to repurchase any
CREI Mortgage Loan.
SECTION 2.06. Representations and Warranties of the Master Servicer
and the Special Servicer.
(a) CRIIMI MAE Services Limited Partnership, both in its capacity as
Master Servicer and in its capacity as Special Servicer (the "Partnership"),
hereby represents and warrants to the other parties hereto and for the benefit
of the Certificateholders, as of the Closing Date, that:
(i) The Partnership is duly organized, validly existing and in good
standing as a limited partnership under the laws of the State of Maryland,
and the Partnership is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Partnership,
and the performance and compliance with the terms of this Agreement by the
Partnership, will not violate the Partnership's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the Partnership's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Master Servicer to perform its obligations
under this Agreement or the financial condition of the Master Servicer.
(iii) The Partnership (and its general partner on its behalf) has the
full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
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(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Partnership, enforceable against the
Partnership in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Partnership is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Partnership's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the
Partnership to perform its obligations under this Agreement or the
financial condition of the Partnership.
(vi) No litigation is pending or, to the best of the Partnership's
knowledge, threatened against the Partnership which would prohibit the
Partnership from entering into this Agreement or, in the Partnership's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Partnership to perform its obligations under this
Agreement or the financial condition of the Partnership.
(vii) Each officer or employee of the Partnership or its general
partner that has responsibilities concerning the servicing and
administration of the Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by Section 3.07(c).
To the best of the Partnership's knowledge, none of the Partnership, its
general partner or any of their respective officers or employees that is
involved in the servicing or administration of the Mortgage Loans has been
refused such coverage or insurance.
(vii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Partnership of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(b) The representations and warranties of the Partnership set forth in
Section 2.06(a) shall survive the execution and delivery of this Agreement and
inure to the benefit of the Persons for whose benefit they were made for so
long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written
notice to each of the other parties hereto.
(c) Each successor Master Servicer and Special Servicer (if any and
regardless of whether the Master Servicer and the Special Servicer are
different Persons) shall be deemed to have made, as of the date of its
succession, each of the representations set forth in Section 2.06(a), subject
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to such appropriate modifications to the representation and warranty set forth
in Section 2.06(a)(i) to accurately reflect such successor's jurisdiction of
organization and whether it is a corporation, partnership, bank, association or
other type of organization, and without regard to the references to general
partner if such successor is not a partnership. In any such case, the term
"Partnership" shall be deemed to mean such successor Master Servicer or Special
Servicer, as appropriate.
SECTION 2.07. Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) State Street Bank and Trust Company, both in its capacity as
Trustee and in its capacity as REMIC Administrator (the "Bank"), hereby
represents and warrants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Bank is a trust company duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts and
is, shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and the
performance and compliance with the terms of this Agreement by the Bank, do
not violate the Bank's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets, which default, in the Bank's good faith and reasonable
judgement, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority,
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which violation, in the Bank's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Bank to
perform its obligations under this Agreement or the financial condition of
the Bank.
(vi) No litigation is pending or, to the best of the Bank's knowledge,
threatened against the Bank which would prohibit the Bank from entering
into this Agreement or, in the Bank's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the Bank
to perform its obligations under this Agreement or the financial condition
of the Bank.
(vii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Bank of the transactions contemplated herein, expect
for those consents, approvals, authorizations or orders that previously
have been obtained.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written
notice to each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each
of the representations set forth in Section 2.07(a), subject to such
appropriate modifications to the representation and warranty set forth in
Section 2.07(a)(i) to accurately reflect such successor's jurisdiction of
organization and whether it is a corporation, partnership, bank, association or
other type of organization. In any such case, the term "Bank" shall be deemed
to mean such successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.08. Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets included
in REMIC I, and in exchange therefor, at the written direction of the Sponsor,
the REMIC I Regular Interests have been issued hereunder and the Trustee has
executed, authenticated and delivered to or upon the order of the Sponsor, the
Class R-I Certificates in authorized denominations. The interests evidenced by
the Class R-I Certificates, together with the REMIC I Regular Interests,
constitute the entire beneficial ownership of REMIC I. The rights of the Class
R-I Certificateholders and REMIC II to receive distributions from the proceeds
of REMIC I in respect of the Class R-I Certificates and the REMIC I Regular
Interests, respectively, and all ownership interests of the Class R-I
Certificateholders and REMIC II in and to such distributions, shall be as set
forth in this Agreement.
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SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Sponsor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Sponsor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates and Class R-II Certificates. The Trustee acknowledges the
assignment to it of the REMIC I Regular Interests and declares that it holds
and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of the REMIC III Certificates and Class R-II
Certificates.
SECTION 2.10. Issuance of the Class R-II Certificates; Creation of the
REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the assets included
in REMIC II, and in exchange therefor, at the written direction of the Sponsor,
the REMIC II Regular Interests have been issued hereunder and the Trustee has
executed, authenticated and delivered to or upon the order of the Sponsor, the
Class R-II Certificates in authorized denominations. The interests evidenced by
the Class R-II Certificates, together with the REMIC II Regular Interests,
constitute the entire beneficial ownership of REMIC II. The rights of the Class
R-II Certificateholders and REMIC III to receive distributions from the
proceeds of REMIC II in respect of the Class R-II Certificates and the REMIC II
Regular Interests, respectively, and all ownership interests of the Class R-II
Certificateholders and REMIC III in and to such distributions, shall be as set
forth in this Agreement.
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by the Trustee.
The Sponsor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Sponsor in and to the REMIC II Regular
Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust
for the exclusive use and benefit of all present and future Holders of the
REMIC III Certificates.
SECTION 2.12. Issuance of the REMIC III Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests, and in exchange therefor, at the written direction of the
Sponsor, the Trustee has executed, authenticated and delivered to or upon the
order of the Sponsor, the REMIC III Certificates in authorized denominations
evidencing the entire beneficial ownership of REMIC III. The rights of the
respective Classes of Holders of the REMIC III Certificates to receive
distributions from the proceeds of REMIC III in respect of their REMIC III
Certificates, and all ownership interests of the respective
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Classes of Holders of the REMIC III Certificates in and to such distributions,
shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service
and administer the Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, and in the best
interests and for the benefit of the Certificateholders, in accordance with any
and all applicable laws and the terms of this Agreement and the respective
Mortgage Loans and, to the extent consistent with the foregoing, in accordance
with the Servicing Standard. Without limiting the foregoing, and subject to
Section 3.21, (i) the Master Servicer shall service and administer all Mortgage
Loans as to which no Servicing Transfer Event has occurred and all Corrected
Mortgage Loans, and (ii) the Special Servicer shall service and administer (x)
each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a
Servicing Transfer Event has occurred, and (y) each REO Property; provided,
however, that the Master Servicer shall continue to collect information from
the Special Servicer and, based thereon, prepare all reports to the Trustee
required hereunder with respect to any Specially Serviced Mortgage Loans and
REO Properties (and the related REO Loans), and further to render such other
services with respect to any Specially Serviced Mortgage Loans and REO
Properties as are specifically provided for herein; and provided, further, that
the Special Servicer shall render such services with respect to Mortgage Loans
(other than the Specially Serviced Mortgage Loans) as are specifically provided
for herein.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer each shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to 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
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all
modifications, waivers, amendments or consents 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. Subject to Section 3.10, the
Trustee shall, at the written request of a Servicing Officer of the Master
Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer and the Special Servicer, as the case may be, any limited
powers of attorney and other documents necessary or appropriate to enable them
to carry out their servicing and administrative duties hereunder; provided,
however, that
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the Trustee shall not be held liable for any misuse of any such power of
attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or Special Servicer,
as applicable, in accordance with the terms of this Agreement, shall service
and administer such Mortgage Loans as a single Mortgage Loan as and when it
deems necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan that
is cross-collateralized with it are remediated or otherwise addressed as
contemplated in the definition of "Specially Serviced Mortgage Loan".
SECTION 3.02. Collection of Mortgage Loan Payments.
Each of the Master Servicer and the Special Servicer shall make
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, to the extent such procedures shall be consistent with this Agreement
(including without limitation, the Servicing Standard), follow such collection
procedures as it would follow were it the owner of such Mortgage Loans;
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer or the Special Servicer of
the collectability of the Mortgage Loans; and, provided, further, that neither
the Master Servicer nor the Special Servicer shall, with respect to any
Hyper-Amortization Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Excess Interest (other than
the making of requests for its collection), unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other
amounts due under such Mortgage Loan have been paid, the payment of such Excess
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. Consistent with the foregoing, the Master Servicer
or the Special Servicer each may waive any Default Charges in connection with
any specific delinquent payment on a Mortgage Loan it is obligated to service
hereunder.
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At least ninety (90) days prior to the maturity date of each Balloon
Mortgage Loan, the Master Servicer shall send a notice to the related Mortgagor
of such maturity date (with a copy to be sent to the Special Servicer) and
shall request confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all the Mortgage Loans, establish
and maintain one or more accounts (the "Servicing Accounts"), into which all
Escrow Payments shall be deposited and retained. Subject to any terms of the
related Mortgage Loan documents that specify the nature of the account in which
Escrow Payments shall be held, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected in respect of any Mortgage Loan
(and interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made thereby to
cover any of the items described in the immediately preceding clause (i); (iii)
to refund to the related Mortgagor any sums as may be determined to be
overages; (iv) to pay interest, if required and as described below, to the
related Mortgagor on balances in the Servicing Account (or, if and to the
extent not payable to the related Mortgagor, to pay such interest to the Master
Servicer); or (v) to clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. The Master
Servicer shall pay or cause to be paid to the Mortgagors interest, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
required by law or the terms of the related Mortgage Loan. If the Master
Servicer shall deposit in a Servicing Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding. The Special
Servicer shall promptly deliver all Escrow Payments received by it to the
Master Servicer for deposit in the applicable Servicing Account.
(b) The Master Servicer shall (with the cooperation of the Special
Servicer in the case of Specially Serviced Mortgage Loans), (i) maintain
accurate records with respect to each Mortgaged Property reflecting the status
of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof and (ii) use reasonable efforts to obtain, from time
to time, all bills for the payment of such items (including renewal premiums)
and shall effect payment thereof prior to the applicable penalty or termination
date. For purposes of effecting any such payment, the Master Servicer shall
apply Escrow Payments as allowed under the terms of the related Mortgage Loan
or, if such Mortgage Loan does not require the related Mortgagor to escrow for
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items, each of the Master Servicer and the Special
Servicer shall, as to those Mortgage Loans it is obligated to service hereunder
and subject to the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
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(c) In accordance with the Servicing Standard, the Master Servicer
shall, as to all the Mortgage Loans (but at the direction of the Special
Servicer in the case of Specially Serviced Mortgage Loans), advance with
respect to the related Mortgaged Property all such funds as are necessary for
the purpose of effecting the payment of (i) real estate taxes, assessments and
other similar items, (ii) ground rents or other rents (if applicable), and
(iii) premiums on Insurance Policies, in each instance if and to the extent
Escrow Payments (if any) collected from the related Mortgagor are insufficient
to pay such item when due and the related Mortgagor has failed to pay such item
on a timely basis, and provided that the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance. All such advances shall be
reimbursable in the first instance from related collections from the Mortgagors
and further as provided in Section 3.05(a). No costs incurred by the Master
Servicer or the Special Servicer in effecting the payment of real estate taxes,
assessments and similar items and, if applicable, ground rents on or in respect
of such Mortgaged Properties shall, solely for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit; provided,
however, that this provision is in no way intended to affect amounts actually
due and owing from the related Mortgagor under such Mortgage Loan.
(d) The Master Servicer shall, as to all the Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"),
into which all Reserve Funds, if any, shall be deposited and retained.
Withdrawals of amounts so deposited may be made to pay for or otherwise cover,
or (if appropriate) to reimburse the related Mortgagor in connection with, the
specific items for which such Reserve Funds were escrowed, all in accordance
with the Servicing Standard and the terms of the related Mortgage Note,
Mortgage and any agreement with the related Mortgagor governing such Reserve
Funds. Subject to the terms of the related Mortgage Note and Mortgage, all
Reserve Accounts shall be Eligible Accounts and funds therein may be invested
in Permitted Investments in accordance with the provisions of Section 3.06.
Interest and investment income on funds held in any Reserve Fund will be for
the benefit of the Master Servicer subject to its withdrawal, but only to the
extent it is not otherwise required to be paid to the related Mortgagor
pursuant to applicable law and/or the related loan documents. The Special
Servicer shall promptly deliver all Reserve Funds received by it to the Master
Servicer for deposit in the applicable Reserve Account.
SECTION 3.04. Collection Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Collection Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Collection
Account shall be an Eligible Account. The Master Servicer shall deposit or
cause to be deposited in the Collection Account, within two Business Days of
receipt (in the case of payments by Mortgagors or other collections on or in
respect of the Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received or made by or on behalf of it
subsequent to the Cut-off Date (other than in respect of principal, interest
and any other amounts due and payable on the Mortgage Loans on or before the
Cut-off Date, which payments shall
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be delivered promptly to the Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest at the respective Mortgage
Rates on the Mortgage Loans and all Prepayment Premiums received in respect
of the Mortgage Loans;
(iii) all payments on account of Default Charges on such Mortgage
Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (net of all
related Liquidation Expenses paid therefrom) received in respect of any
Mortgage Loan (other than Liquidation Proceeds that are received in
connection with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the Mortgage Loans and
any REO Properties in the Trust Fund and that are required to be deposited
in the Distribution Account pursuant to Section 9.01);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master single interest
policy;
(vii) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made.
The foregoing requirements for deposit in the Collection Account shall
be exclusive. Without limiting the generality of the foregoing, (A) actual
payments from Mortgagors in the nature of Escrow Payments, and amounts that the
Master Servicer and the Special Servicer are entitled to retain as additional
servicing compensation pursuant to Section 3.11(b) and Section 3.11(d),
respectively, need not be deposited by the Master Servicer in the Collection
Account and (B) with respect to any amount representing a sub-servicing fee
(including, without limitation, a Primary Servicing Fee, if applicable) that
otherwise would be required to be deposited by the Master Servicer in the
Collection Account and that, once so deposited, would have been permitted to be
withdrawn immediately from the Collection Account pursuant to Section 3.05 as
part of the payment of the Master Servicing Fee, such amount shall be deemed to
have been deposited to and withdrawn from the Collection Account for such
purpose to the extent that such sum has been retained by the Sub-
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Servicer pursuant to the related Sub-Servicing Agreement. If the Master
Servicer shall deposit in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), assumption fees,
modification fees, Net Default Charges and similar fees (excluding Prepayment
Premiums) received by the Master Servicer with respect to Specially Serviced
Mortgage Loans. The Collection Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage pass-through
certificates of other series serviced and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit
such amounts to the Master Servicer for deposit into the Collection Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer and shall deliver promptly, but in no event later
than two Business Days after receipt, any such check to the Master Servicer by
overnight courier, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement or other appropriate reason. Any such
amounts received by the Special Servicer with respect to an REO Property shall
be deposited by the Special Servicer into the REO Account and remitted to the
Master Servicer for deposit into the Collection Account pursuant to Section
3.16(c).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. The Distribution Account shall be an
Eligible Account. On each Master Servicer Remittance Date, the Master Servicer
shall deliver to the Trustee, for deposit in the Distribution Account, an
aggregate amount of immediately available funds equal to the Master Servicer
Remittance Amount for such Master Servicer Remittance Date. If, at 1:00 p.m.,
New York City time, on any Master Servicer Remittance Date, the Trustee has not
received the Master Servicer Remittance Amount, the Trustee shall provide
notice to the Master Servicer in the same manner as required by Section 4.03(a)
hereof with respect to P&I Advances.
In addition, subject to Section 3.04(c), the Master Servicer shall, as
and when required hereunder, deliver to the Trustee for deposit in the
Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
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(iii) any amounts required to be transferred from the Interest Reserve
Account pursuant to Section 3.05(c) in March of any year.
Furthermore, any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds required to
be deposited in the Collection Account pursuant to Section 9.01, shall be
deposited in the Distribution Account.
The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received or advanced by the Trustee that are required by
the terms of this Agreement to be deposited therein.
(c) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account") to be held in trust for
the benefit of the Certificateholders. The Interest Reserve Account shall be an
Eligible Account. On each Master Servicer Remittance Date in February and,
during a year that is not a leap year, in January, prior to transferring the
related Master Servicer Remittance Amount to the Distribution Account on such
Master Servicer Remittance Date, the Master Servicer shall withdraw from the
Collection Account (out of general collections on the Mortgage Loans and any
REO Properties), and deposit in the Interest Reserve Account, an amount equal
to the Interest Reserve Amount, if any, in respect of each Interest Reserve
Loan for such Master Servicer Remittance Date; provided that, if the Master
Servicer Remittance Amount for any such Master Servicer Remittance Date
(calculated without regard to deduction for such Interest Reserve Amounts) is
less than the amount required to be transferred to the Interest Reserve Account
on such date pursuant to this Section 3.04(c), then the Master Servicer shall
(i) so notify the Trustee, (ii) deduct the shortfall from the interest portion
of any P&I Advances to be made in respect of the Interest Reserve Loans on such
Master Servicer Remittance Date and (iii) promptly deposit the amount so
deducted in the Interest Reserve Account.
(d) Funds in the Collection Account and the Interest Reserve Account
may be invested in Permitted Investments in accordance with the provisions of
Section 3.06. The Master Servicer shall give notice to the other parties hereto
of the location of each of the Collection Account and the Interest Reserve
Account as of the Closing Date and of the new location of each of the
Collection Account and the Interest Reserve Account prior to any change
thereof. The Trustee shall give notice to the other parties hereto of the
location of the Distribution Account as of the Closing Date and of the new
location of the Distribution Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Account and
the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Collection Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
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(i) to remit to the Trustee for deposit in the Distribution Account
the Master Servicer Remittance Amount for and, to the extent permitted or
required by Section 4.03(a), any P&I Advances to be made on each Master
Servicer Remittance Date;
(ii) to reimburse the Trustee or the Master Servicer, as applicable,
in that order, for unreimbursed P&I Advances made thereby in respect of any
Mortgage Loan or REO Loan, the Trustee's and the Master Servicer's
respective rights to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance being payable from, and limited to, amounts that
represent Late Collections of interest and principal (net of related Master
Servicing Fees, Workout Fees and/or Liquidation Fees payable therefrom)
received in respect of the particular Mortgage Loan or REO Loan as to which
such P&I Advance was made;
(iii) to pay to the Master Servicer unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Loan earned through the most recent
Due Date for such Mortgage Loan or REO Loan preceding the date of the
subject withdrawal (or such later date through which interest was then
collected in respect of such Mortgage Loan or REO Loan), the Master
Servicer's right to payment pursuant to this clause (iii) with respect to
any Mortgage Loan or REO Loan being payable from, and limited to, amounts
received on or in respect of such Mortgage Loan (whether in the form of
payments, Liquidation Proceeds or Insurance Proceeds) or REO Loan (whether
in the form of REO Revenues, Liquidation Proceeds or Insurance Proceeds)
that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on the
Mortgage Loans and any REO Properties, unpaid Special Servicing Fees in
respect of each Specially Serviced Mortgage Loan and REO Loan earned
through the most recent Due Date for such Specially Serviced Mortgage Loan
or REO Loan preceding the date of the subject withdrawal (or such later
date through which interest was then collected in respect of such Specially
Serviced Mortgage Loan or REO Loan);
(v) to pay to the Special Servicer earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled pursuant to, and from the sources
contemplated by, Section 3.11(c);
(vi) to reimburse the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, for any unreimbursed Servicing
Advances made thereby with respect to any Mortgage Loan or REO Property,
the Trustee's, the Special Servicer's and the Master Servicer's respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance being payable from, and limited to, (A) payments made by
the related Mortgagor that are allocable to cover the item in respect of
which such Servicing Advance was made, and (B) Liquidation Proceeds (net of
Liquidation Fees payable therefrom), Insurance Proceeds and, if applicable,
REO Revenues received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made;
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(vii) to reimburse the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, out of general collections on the
Mortgage Loans and any REO Properties, for any unreimbursed Advances made
thereby with respect to any Mortgage Loan, REO Loan or REO Property that
have been determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, any Advance Interest due and owing
thereto, the Trustee's, the Special Servicer's and the Master Servicer's
respective rights to payment pursuant to this clause (viii) being payable
solely from Default Charges collected in respect of the Mortgage Loan or
REO Loan as to which the related Advances were made;
(ix) at or following such time as the Master Servicer reimburses
itself, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above or
Section 3.03, and insofar as payment has not already been made pursuant to
clause (viii) above, to pay the Trustee, the Special Servicer or the Master
Servicer, as the case may be, and in that order, out of general collections
on the Mortgage Loans and any REO Properties, any related Advance Interest
accrued and payable on such Advance;
(x) to pay the Master Servicer, as additional servicing compensation
in accordance with Sections 3.06(b) and 3.11(b), any Net Investment
Earnings in respect of amounts held in the Collection Account for any
Collection Period;
(xi) to pay the Master Servicer, as additional servicing compensation
in accordance with Section 3.11(b), (A) any Prepayment Interest Excesses
collected on all the Mortgage Loans (but only to the extent that all such
Prepayment Interest Excesses collected during any Collection Period exceed
all Prepayment Interest Shortfalls incurred with respect to the Mortgage
Loans during such Collection Period) and (B) any Net Default Charges
collected on Mortgage Loans that are not Specially Serviced Mortgage Loans
or REO Loans; and to pay the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(d), any Net Default Charges
collected on any Mortgage Loan to the extent allocable to the period that
such Mortgage Loan is a Specially Serviced Mortgage Loan or REO Loan;
(xii) to reimburse, out of general collections on the Mortgage Loans
and any REO Properties, the Master Servicer, the Special Servicer, the
REMIC Administrator, the Sponsor, or any of their respective directors,
officers, employees and agents any amounts reimbursable to any such Person
pursuant to Section 6.03, or to pay directly to any third party any amount
which if paid by any such Person would be reimbursable thereto pursuant to
Section 6.03;
(xiii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the reasonable costs of the advice of counsel
contemplated by Section 3.17(a), (B) the reasonable costs of the Opinions
of Counsel contemplated by Sections 3.09(b)(ii) and 3.16(a), (C) the
reasonable costs of Appraisals obtained pursuant to Section
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3.11(g) or 4.03(c), (D) the reasonable costs of obtaining any REO
Extension sought by the Special Servicer as contemplated by Section
3.16(a), and (E) the cost of recording this Agreement in accordance with
Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Seller, the
Additional Warranting Party or any other Person, as the case may be, with
respect to each Mortgage Loan, if any, previously purchased by such Person
pursuant to this Agreement, all amounts received thereon subsequent to the
date of purchase;
(xv) to pay the Trustee or any of its directors, officers, employees
and agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05(b);
(xvi) to pay (A) any costs and expenses contemplated in Section
3.11(h), the last sentence of Section 7.02 and the last sentence of Section
8.08(a) and (B) the cost of any remedial, corrective or other further
action contemplated by clause (i) and/or clause (ii) of Section 3.09(c);
(xvii) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c); and
(xviii) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular time
(after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvii)
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds,
provided that where, as in clauses (ii), (vi) and (viii), an order of priority
is set forth to govern the application of funds withdrawn from the Collection
Account pursuant to such clauses, payments, reimbursements or remittances
pursuant to any such clause shall be made in such order of priority to the
extent of available funds; and (B) if the payment, reimbursement or remittance
can be made from any funds on deposit in the Collection Account, then
(following any withdrawals made from the Collection Account in accordance with
the immediately preceding clause (A) above) such payment, reimbursement or
remittance shall be made from such general funds remaining on a pro rata basis
with any and all other payments, reimbursements or remittances to be made from
such general funds, provided that where, as in clauses (vii) and (ix), an order
of priority is set forth to govern the application of funds withdrawn from the
Collection Account pursuant to such clauses, payments,
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reimbursements or remittances pursuant to any such clause shall be made in such
order of priority to the extent of available funds.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Collection Account pursuant to clauses
(ii) through (xvii) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Collection
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Collection Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant to
Section 8.05(a);
(iii) to pay the Trustee or any of its directors, officers, employees
and agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 11.01(g), to pay for the reasonable
costs of the Opinions of Counsel sought by the Trustee as contemplated by
Section 11.01(a) or 11.01(c) in connection with any amendment to this
Agreement requested by the Trustee which amendment is in furtherance of the
rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel sought
by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes imposed on
REMIC I, REMIC II or REMIC III or on the assets or transactions of any such
REMIC, together with all incidental costs and expenses, and any and all
reasonable expenses relating to tax audits, if and to the extent that
either (1) none of the Trustee, the Master Servicer, the Special
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Servicer or the REMIC Administrator is liable therefor pursuant to
Section 10.01(d) and/or Section 10.01(h) or (2) any such Person that may be
so liable has failed to timely make the required payment, and (B) reimburse
the REMIC Administrator for reasonable expenses incurred by and
reimbursable to it by the Trust pursuant to Section 10.01(d) and/or Section
10.01(g);
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On each Master Servicer Remittance Date in March, the Master
Servicer shall withdraw from the Interest Reserve Account and remit to the
Trustee for deposit in the Distribution Account all Interest Reserve Amounts
deposited in the Interest Reserve Account in respect of the Interest Reserve
Loans during January and/or February of the same year in accordance with
Section 3.04(c).
SECTION 3.06. Investment of Funds in the Collection Account, the
Interest Reserve Account, the REO Account, the Servicing
Accounts and the Reserve Accounts.
(a) The Master Servicer may direct any depository institution
maintaining the Collection Account, the Interest Reserve Account or, subject to
applicable law and the related loan documents, any Servicing Account or Reserve
Account, and the Special Servicer may direct any depository institution
maintaining the REO Account, to invest, or if it is such depository
institution, may itself invest, the funds held therein (each such account, for
purposes of this Section 3.06, an "Investment Account") in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement. All such Permitted Investments shall
be held to maturity, unless payable on demand, in which case such investments
may be sold at any time. Any investment of funds in an Investment Account shall
be made in the name of the Trustee for the benefit of the Certificateholders
(in its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Collection Account, the Interest Reserve Account,
a Servicing Account or a Reserve Account) and the Special Servicer (with
respect to Permitted Investments of amounts in the REO Account) acting on
behalf of the Trustee, shall (and Trustee hereby designates the Master Servicer
and the Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security
entitlement", "control", "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision)
of the UCC, and "control" of any Permitted Investment by the Master Servicer or
the Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee for purposes of Revised Article 8 (1994
Revision) of the UCC. If amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the
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Master Servicer (in the case of the Collection Account, the Interest Reserve
Account, a Servicing Account or a Reserve Account) or the Special Servicer (in
the case of the REO Account) 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 Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in the Collection Account, the Interest Reserve Account, a Servicing Account or
a Reserve Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period (and, further to the extent that,
in the case of a Servicing Account or a Reserve Account, such interest or
investment income is not otherwise required to be paid to the related Mortgagor
in accordance with applicable law and/or the related loan documents), shall be
for the sole and exclusive benefit of the Master Servicer and shall be subject
to its withdrawal in accordance with Section 3.05(a). Whether or not the
Special Servicer directs the investment of funds in the REO Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each
Collection Period, shall be for the sole and exclusive benefit of the Special
Servicer and shall be subject to its withdrawal in accordance with Section
3.16(b). If any loss shall be incurred in respect of any Permitted Investment
on deposit in any Investment Account, the Master Servicer (in the case of the
Collection Account, the Interest Reserve Account, a Servicing Account or a
Reserve Account) and the Special Servicer (in the case of the REO Account)
shall promptly deposit therein from its own funds, without right of
reimbursement, no later than the end of the Collection Period during which such
loss was incurred, the amount of the Net Investment Loss, if any, for such
Collection Period. The Trustee shall have no liability whatsoever with respect
to any such losses, except to the extent that it is the obligor on any such
Permitted Investment.
(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 and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
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(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest
earned thereon) shall be deemed to remain on deposit in such Investment
Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) Each of the Master Servicer and the Special Servicer shall, as to
those Mortgage Loans it is obligated to service hereunder, use its best efforts
in accordance with the Servicing Standard to cause the related Mortgagor to
maintain (and, if the related Mortgagor does not so maintain, the Master
Servicer (even in the case of Specially Serviced Mortgage Loans) shall itself
maintain (subject to the provisions of this Agreement regarding Nonrecoverable
Advances, and further subject to Section 3.11(h) hereof, and to the extent the
Trustee, as mortgagee on behalf of the Certificateholders, has an insurable
interest and to the extent available at commercially reasonable rates) all
insurance coverage as is required under the related Mortgage (subject to
applicable law); provided that if any Mortgage permits the holder thereof to
dictate to the Mortgagor the insurance coverage to be maintained on such
Mortgaged Property, the Master Servicer or the Special Servicer, as
appropriate, shall impose such insurance requirements as are consistent with
the Servicing Standard. The Special Servicer shall cause to be maintained for
each REO Property, in each case with an insurer that possesses (or whose
obligations are guaranteed or backed, in writing, by an entity having) the
Required Claims-Paying Ratings at the time such policy is purchased, no less
insurance coverage than was previously required of the related Mortgagor under
the related Mortgage and, if the related Mortgage did not so require, hazard
insurance, public liability insurance and business interruption or rent loss
insurance in such amounts as are consistent with the Servicing Standard, and
the Special Servicer shall be reimbursed for the premium costs thereof as a
Servicing Advance pursuant to and to the extent permitted under Section
3.05(a). All such insurance policies shall contain a "standard" mortgagee
clause, with loss payable to the Master Servicer (in the case of insurance
maintained in respect of the Mortgaged Properties) or the Special Servicer (in
the case of insurance maintained in respect of REO Properties) on behalf of the
Trustee, shall be issued by an insurer authorized under applicable law to issue
such insurance, and, unless prohibited by the related Mortgage, may contain a
deductible clause (not in excess of a customary amount). Any amounts collected
by the Master Servicer or Special Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with the Servicing Standard) shall be deposited in the
Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the
case of amounts received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.16(c), in the case of amounts
received in respect of an REO Property. Any cost incurred by the Master
Servicer or the Special Servicer, as applicable, in maintaining any such
insurance shall not, solely for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such
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Mortgage Loan so permit; provided, however, that this provision is in no way
intended to affect amounts due and owing from the related Mortgagor under such
Mortgage Loan.
(b) (i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket policy insuring against hazard losses on any or all
of the Mortgaged Properties (in the case of the Master Servicer) or REO
Properties (in the case of the Special Servicer), then, to the extent such
policy (i) is obtained from a Qualified Insurer that possesses (or whose
obligations are guaranteed or backed, in writing, by an entity having) the
Required Claims-Paying Ratings, and (ii) provides protection equivalent to
the individual policies otherwise required, the Master Servicer or the
Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
Mortgaged Properties or REO Properties, as applicable, so covered, and the
premium costs thereof shall be, if and to the extent they are specifically
attributable either to a specific Mortgaged Property during any period that
the related Mortgagor has failed to maintain the hazard insurance required
under the related Mortgage Loan in respect of such Mortgaged Property or to
a specific REO Property, a Servicing Advance reimbursable pursuant to and
to the extent permitted under Section 3.05(a); provided that, to the extent
that such premium costs are attributable to properties other than Mortgaged
Properties and/or REO Properties or are attributable to Mortgaged
Properties as to which the hazard insurance required under the related
Mortgage Loan is being maintained, they shall be borne by the Master
Servicer or Special Servicer, as the case may be, without right of
reimbursement. Such a blanket policy may contain a deductible clause (not
in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property, as
applicable, a hazard insurance policy complying with the requirements of
Section 3.07(a), and there shall have been one or more losses which would
have been covered by such property specific policy (taking into account any
deductible clause that would have been permitted therein), promptly deposit
into the Collection Account from its own funds (without right of
reimbursement) the amount of such losses up to the difference between the
amount of the deductible clause in such blanket policy and the amount of
any deductible clause that would have been permitted under such property
specific policy. The Master Servicer and the Special Servicer each agree to
prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy maintained by it
in a timely fashion in accordance with the terms of such policy.
(ii) If the Master Servicer shall cause any Mortgaged Property or the
Special Servicer shall cause any REO Property to be covered by a master
single interest insurance policy naming the Master Servicer or the Special
Servicer, as applicable, on behalf of the Trustee as the loss payee, then
to the extent such policy (i) is obtained from a Qualified Insurer that
possesses (or whose obligations are guaranteed or backed, in writing, by an
entity having) the Required Claims-Paying Ratings and (ii) provides
protection equivalent to the individual policies otherwise required, the
Master Servicer or the Special Servicer, as applicable, shall conclusively
be deemed to have satisfied its obligation to cause such
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insurance to be maintained on such Mortgaged Property (in the case of
the Master Servicer) or REO Property (in the case of the Special Servicer).
If the Master Servicer shall cause any Mortgaged Property as to which the
related Mortgagor has failed to maintain the required insurance coverage,
or the Special Servicer shall cause any REO Property, to be covered by such
master single interest insurance policy, then the incremental costs of such
insurance applicable to such Mortgaged Property or REO Property (i.e.,
other than any minimum or standby premium payable for such policy whether
or not any Mortgaged Property or REO Property is covered thereby) paid by
the Master Servicer or the Special Servicer, as applicable, shall
constitute a Servicing Advance. The Master Servicer shall, consistent with
the Servicing Standard and the terms of the related Mortgage Loan
documents, pursue the related Mortgagor for the amount of such incremental
costs. All other costs associated with any such master single interest
insurance policy (including, without limitation, any minimum or standby
premium payable for such policy) shall be borne by the Master Servicer or
Special Servicer, as the case may be, without right of reimbursement. Such
master single interest insurance policy may contain a deductible clause
(not in excess of a customary amount), in which case the Master Servicer or
the Special Servicer, as applicable, shall, in the event that there shall
not have been maintained on the related Mortgaged Property or REO Property,
as the case may be, a policy otherwise complying with the provisions of
Section 3.07(a), and there shall have been one or more losses which would
have been covered by such property specific policy had it been maintained,
promptly deposit into the Collection Account from its own funds (without
right of reimbursement) the amount not otherwise payable under the master
single interest 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.
(c) Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement keep in force with recognized insurers
that possess (or whose obligations are guaranteed or backed, in writing, by
entities having) the Required Claims-Paying Ratings a fidelity bond in such
form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac
seller-servicer of multifamily mortgage loans. Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without 30 days' prior written notice
to the Trustee.
In addition, each of the Master Servicer and the Special Servicer
shall at all times during the term of this Agreement keep in force with
recognized insurers that possess (or whose obligations are guaranteed or
backed, in writing, by entities having) the Required Claims-Paying Ratings a
policy or policies of insurance covering loss occasioned by the errors and
omissions of its (or, in the case of each of the initial Master Servicer and
the initial Special Servicer, its general partner's) officers and employees in
connection with its obligation to service the Mortgage Loans for which it is
responsible hereunder, which policy or policies shall be in such form and
amount as would
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permit it to be a qualified Fannie Mae or Freddie Mac seller-servicer of
multifamily mortgage loans. Any such errors and omissions policy, if required,
shall provide that it may not be canceled without 30 days' prior written notice
to the Trustee.
(d) All insurance coverage required to be maintained under this
Section 3.07 shall be obtained from Qualified Insurers.
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing.
(a) As to each Mortgage Loan which 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 of a controlling interest in
the related Mortgagor; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall, on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to any such sale or other transfer, in a manner consistent
with the Servicing Standard, but subject to Section 3.20(a)(iii); provided
that, notwithstanding anything to the contrary contained herein, neither the
Master Servicer nor the Special Servicer shall waive any right it has, or grant
any consent it is otherwise entitled to withhold, under any related
"due-on-sale" clause unless it first (1) shall have provided, at least five
Business Days prior to the granting of such waiver or consent, to any single
Holder that constitutes the Majority Certificateholder of the Controlling Class
and, in the case of the Master Servicer, to the Special Servicer written notice
of the matter and a written explanation of the surrounding circumstances, (2)
upon request made within such five Business Day-period, shall have discussed
the matter with any such single Holder that constitutes the Majority
Certificateholder of the Controlling Class and/or, in the case of the Master
Servicer, with the Special Servicer; and provided, further, that,
notwithstanding anything to the contrary contained herein, if the
then-outstanding principal balance of the subject Mortgage Loan (together with
the then-outstanding aggregate principal balance of all other Mortgage Loans
that are cross-collateralized with the subject Mortgage Loan to the same
Mortgagor or to other Mortgagors that are, to the Master Servicer's or Special
Servicer's, as applicable, actual knowledge, Affiliates of the Mortgagor under
the subject Mortgage Loan) is more than 2% of the then-outstanding aggregate
principal balance of the Mortgage Pool, neither the Master Servicer nor the
Special Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, under any related "due-on-sale" clause until it
has obtained written confirmation from
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each Rating Agency that such action shall not result in a qualification,
downgrade or withdrawal of the rating then assigned by such Rating Agency to
any Class of Certificates; and provided, further, that, notwithstanding
anything to the contrary contained herein, neither the Master Servicer nor the
Special Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, under any related "due-on-sale" clause
governing the transfer of any Mortgaged Property which secures, or controlling
interests in any Mortgagor under, a Group of Cross-Collateralized Mortgage
Loans unless all of the Mortgaged Properties securing, or a controlling
interest in all the Mortgagors (if more than one) under, such Group of
Cross-Collateralized Mortgage Loans are transferred simultaneously to the same
transferee. In the event that the Master Servicer or Special Servicer intends
or is required, in accordance with the preceding sentence, the Mortgage Loan
documents or applicable law, to permit the transfer of any Mortgaged Property,
the Master Servicer or the Special Servicer, as the case may be, may, if
consistent with the Servicing Standard, enter into a substitution of liability
agreement, pursuant to which the original Mortgagor and any original guarantors
are released from liability, and the transferee and any new guarantors are
substituted therefor and become liable under the Mortgage Note and any related
guaranties and, in connection therewith, may require from the related Mortgagor
a reasonable and customary fee for the additional services performed by it,
together with reimbursement for any related costs and expenses incurred by it
(but only to the extent that charging such fee will not be a "significant
modification" of the Mortgage Loan, or result in the receipt by REMIC I, REMIC
II or REMIC III of net income from a "prohibited transaction", under the REMIC
Provisions). The Master Servicer or the Special Servicer, as the case may be,
shall promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage File.
(b) As to each Mortgage Loan which contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional lien or
other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any such
additional lien or other encumbrance on the related Mortgaged Property;
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, but subject to
Section 3.20(a)(iii); provided that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause unless it first (1)
shall have provided, at least five Business Days prior to the granting of such
waiver or consent, to any single Holder
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that constitutes the Majority Certificateholder of the Controlling Class and,
in the case of the Master Servicer, to the Special Servicer written notice of
the matter and a written explanation of the surrounding circumstances, and (2)
upon request made within such five Business Day-period, shall have discussed
the matter with any such single Holder that constitutes the Majority
Certificateholder of the Controlling Class and/or, in the case of the Master
Servicer, with the Special Servicer; and provided, further, that,
notwithstanding anything to the contrary contained herein, neither the Master
Servicer nor the Special Servicer shall waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related
"due-on-encumbrance" clause until it has obtained written confirmation from
each Rating Agency that such action would not result in the qualification,
downgrade or withdrawal of the rating then assigned by such Rating Agency to
any Class of Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any additional lien or other encumbrance
with respect to such Mortgaged Property.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through (d)
of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of properties securing such of
the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
and which are not released from the Trust Fund pursuant to any other provision
hereof, if the Special Servicer determines, consistent with the Servicing
Standard, that such action would be in the best economic interest of the Trust;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any Hyper-Amortization Loan after its Anticipated Repayment Date,
take any enforcement action with respect to the payment of Excess Interest
(other than the making of requests for its collection) unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other
amounts due under such Mortgage Loan have been paid, the payment of such Excess
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. The Special Servicer shall advance or direct the
Master Servicer to advance, as contemplated by Section 3.19(d), all costs and
expenses to be incurred on behalf of the Trust in any such proceedings, subject
to each of the Master Servicer and the Special Servicer being entitled to
reimbursement for any such advance as a Servicing Advance as provided in
Section 3.05(a), and further subject to the Special Servicer's being entitled
to pay out of the related Liquidation Proceeds any Liquidation Expenses
incurred in respect of any Mortgage Loan, which Liquidation Expenses were
outstanding at the time such proceeds are
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received. In connection with the foregoing, in the event of a default under any
Mortgage Loan or Group of Cross-Collateralized Mortgage Loans that are secured
by real properties located in multiple states, and such states include the
State of California or another state with a statute, rule or regulation
comparable to the State of California's "one action" rule, then the Special
Servicer shall consult with Independent counsel regarding the order and manner
in which the Special Servicer should foreclose upon or comparably proceed
against such properties (the cost of such consultation to be advanced by the
Master Servicer as a Servicing Advance, at the direction of the Special
Servicer, subject to the Master Servicer's being entitled to reimbursement
therefor as a Servicing Advance as provided in Section 3.05(a)). When
applicable state law permits the Special Servicer to select between judicial
and non-judicial foreclosure in respect of any Mortgaged Property, the Special
Servicer shall make such selection in a manner consistent with the Servicing
Standard. Nothing contained in this Section 3.09 shall be construed so as to
require the Special Servicer, on behalf of the Trust, to make an offer on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in
excess of the fair market value of such property, as determined by the Special
Servicer in its reasonable and good faith judgment taking into account the
factors described in Section 3.18(e) and the results of any Appraisal obtained
pursuant to the following sentence or otherwise, all such offers to be made in
a manner consistent with the Servicing Standard. If and when the Special
Servicer or the Master Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
defaulted Mortgage Loan, whether for purposes of making an offer at foreclosure
or otherwise, the Special Servicer or the Master Servicer, as the case may be,
is authorized to have an Appraisal completed with respect to such property (the
cost of which Appraisal shall be advanced by the Master Servicer as a Servicing
Advance, subject to its being entitled to reimbursement therefor as a Servicing
Advance as provided in Section 3.05(a), such Advance to be made at the
direction of the Special Servicer when the Appraisal is obtained by the Special
Servicer).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the reasonable cost of which may be withdrawn from the Collection Account
pursuant to Section 3.05(a)) to the effect that the holding of such
personal property by the Trust will not cause either of REMIC I, REMIC II
or REMIC III to fail to qualify as a REMIC at any time that any Certificate
is outstanding or, subject to Section 3.17, cause the imposition of a tax
on the Trust under the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Master Servicer shall, on behalf of the
Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged Property
in lieu of foreclosure or otherwise, have a receiver of rents appointed with
respect to any Mortgaged Property, or take any other action with respect to
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any Mortgaged Property, if, as a result of any such action, the Trustee, on
behalf of the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property performed within the 12-month period
preceding such determination by an Independent Person who regularly conducts
Phase I Environmental Assessments and such additional environmental testing,
that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith and
proceeding against the Mortgaged Property is reasonably likely to produce a
greater recovery to Certificateholders on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Net Mortgage Rate (or,
in the case of a Hyper-Amortization Loan after its Anticipated Repayment
Date, at the related Net Mortgage Rate immediately prior to the Anticipated
Repayment Date)), taking into consideration any associated liabilities,
than not taking such actions and not proceeding against such Mortgaged
Property; and
(ii) there are no circumstances or conditions present at the Mortgaged
Property relating to the use, management or disposal of Hazardous Materials
for which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws
and/or regulations or, if such circumstances or conditions are present for
which any such action could be required, that taking such actions with
respect to such Mortgaged Property and proceeding against the Mortgaged
Property is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to
be performed at the related Net Mortgage Rate (or, in the in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, at the
related Net Mortgage Rate immediately prior to the Anticipated Repayment
Date)), taking into consideration any associated liabilities, than not
taking such actions and not proceeding against such Mortgaged Property.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing shall be advanced by the Master Servicer at
the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph shall
be payable directly out of the Collection Account.
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(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a defaulted Mortgage Loan, the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property, but including the sale of the
affected Mortgage Loan) and, at such time as it deems appropriate, may, on
behalf of the Trustee, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage; provided that prior to the release of all or
a portion of the related Mortgaged Property from the lien of the related
Mortgage, (i) the Special Servicer shall have notified the Trustee and the
Master Servicer in writing of its intention to so release all or a portion of
such Mortgaged Property, (ii) the Trustee shall have notified the
Certificateholders in writing of the Special Servicer's intention to so release
all or a portion of such Mortgaged Property and (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall not have
objected to such release within 30 days of the Trustee's distributing such
notice.
(e) The Special Servicer shall provide written reports to the Trustee
and the Master Servicer monthly regarding any actions taken by the Special
Servicer with respect to any Mortgaged Property securing a defaulted Mortgage
Loan as to which the environmental testing contemplated in subsection (c) above
has revealed that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied or that any remedial,
corrective or other further action contemplated by either such clause is
required, in each case until the earliest to occur of (i) satisfaction of both
such conditions and completion of all such remedial, corrective or other
further action, (ii) repurchase of the related Mortgage Loan by the Mortgage
Loan Seller and (iii) release of the lien of the related Mortgage on such
Mortgaged Property. The Trustee shall forward or make available electronically
copies of all such reports to the Certificateholders and the Rating Agencies
promptly following the receipt thereof.
(f) The Special Servicer shall file on a timely basis the information
returns with respect to the receipt of any mortgage interest received in a
trade or business, the reports of foreclosures and abandonments and reports
relating to any cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050H, 6050J and 6050P of the Code and
deliver annually, on or before December 31 of each year, to the Trustee an
Officer's Certificate stating that all such reports that were required to be
filed during that year, have been filed. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by such
Sections 6050H, 6050J and 6050P of the Code.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
The Master Servicer, at the direction of the Special Servicer, shall advance
the costs incurred in any such deficiency action, subject to its being entitled
to reimbursement therefor as a Servicing Advance as provided in Section
3.05(a).
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(h) The Special Servicer shall maintain accurate records, certified by
a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Master Servicer and the Rating Agencies no later than the tenth
Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer or Special Servicer of a notification that payment in full
shall be escrowed in a manner customary for such purposes, the Master Servicer
or Special Servicer, as the case may be, shall immediately notify the Trustee
and request delivery of the related Mortgage File by delivering thereto a
Request for Release in the form of Exhibit E attached hereto signed by a
Servicing Officer of the Master Servicer or Special Servicer, as applicable.
Any such Request for Release 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 3.04(a)
have been or will be so deposited. Upon receipt of such notice and request
conforming in all material respects to the provisions hereof, the Trustee shall
promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as applicable, and
shall, if requested, promptly execute and deliver such documents furnished to
it by such person and certified by such person as being necessary for such
purpose. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Collection Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit E attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be, and shall, if requested,
promptly execute and deliver such documents furnished to it by such person and
certified by such person as being necessary for such purpose. Upon return of
such Mortgage File (or portion thereof) to the Trustee or the related
Custodian, or the delivery to the Trustee of a certificate of a Servicing
Officer of the Master Servicer or the Special Servicer 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 pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, the Request
for Release shall be released by the Trustee to the Master Servicer or the
Special Servicer, as applicable.
(c) The Trustee, if requested, shall promptly execute and deliver to
the Special Servicer any court pleadings, requests for trustee's sale or other
documents furnished by the Special Servicer and certified by it as being
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any
Mortgagor on the
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Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or for any other purpose necessary or advisable
in the reasonable, good faith judgment of the Special Servicer; provided,
however, that the Special Servicer shall be responsible for the preparation of
all such documents and pleadings; and when submitted to the Trustee for
signature, such documents or pleadings shall be accompanied by a certificate of
a Servicing Officer requesting that such pleadings or documents be executed by
the Trustee and certifying as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's
sale.
SECTION 3.11. Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan (including, without limitation, each Specially Serviced Mortgage
Loan) and REO Loan. As to each Mortgage Loan and REO Loan, the Master Servicing
Fee shall accrue from time to time at the applicable Master Servicing Fee Rate
on the basis of the same principal amount and for the same number of days
respecting which any related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed under the terms of the related
Mortgage Note (as such terms may be changed or modified at any time following
the Closing Date) and applicable law, and without giving effect to any Excess
Interest that may accrue on any Hyper-Amortization Loan after its Anticipated
Repayment Date. The Master Servicing Fee with respect to any Mortgage Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage
Loan or REO Loan out of Insurance Proceeds or Liquidation Proceeds to the
extent permitted by Section 3.05(a). The right to receive the Master Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer's responsibilities and obligations under
this Agreement or except as provided in Section 3.22(d). The Master Servicer
shall, monthly out of its Master Servicing Fee, pay to any Sub-Servicer
retained by the Master Servicer such Sub-Servicer's sub-servicing fee
(including, without limitation, any Primary Servicing Fee, if applicable), to
the extent such Sub-Servicer is entitled thereto under the applicable
Sub-Servicing Agreement.
(b) The Master Servicer shall be entitled to receive as additional
servicing compensation:
(i) Net Default Charges, assumption fees, modification fees and any
similar fees (excluding Prepayment Premiums), in each case to the extent
actually paid by a Mortgagor with respect to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan;
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(ii) charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, to the extent
actually paid by a Mortgagor with respect to any Mortgage Loan;
(iii) any Prepayment Interest Excesses collected on the Mortgage Loans
(but only to the extent such Prepayment Interest Excesses collected during
any Collection Period are greater than all Prepayment Interest Shortfalls
incurred in respect of the Mortgage Loans during such Collection Period);
and
(iv) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period and,
in the case of a Servicing Account or Reserve Account, only to the extent
such interest or other income is not required to be paid to any Mortgagor
under applicable law or under the related Mortgage Loan documents);
provided that with respect to the items of additional servicing compensation
set forth in clauses (i) and (ii) above, the Master Servicer shall, in turn,
pay the amounts described therein to the related Sub-Servicer to the extent
such Sub-Servicer is entitled thereto under the applicable Sub-Servicing
Agreement.
Notwithstanding anything to the contrary contained herein, any entity
acting as Master Servicer shall be entitled to assign to an Affiliate the right
to receive, for so long as (but only for so long as) such entity continues to
act as Master Servicer, any or all of the items constituting additional
servicing compensation contemplated by this Section 3.11(b).
The Master Servicer shall be required to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any
Sub-Servicer retained by it and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Collection Account, and the Master
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue
from time to time at the Special Servicing Fee Rate on the basis of the same
principal amount and for the same number of days respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
modified at any time following the Closing Date) and applicable law, and
without giving effect to any Excess Interest that may accrue on any Hyper-
Amortization Loan after its Anticipated Repayment Date. The Special Servicing
Fee with respect to any Specially Serviced Mortgage Loan or REO Loan shall
cease to accrue as of the date a
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Liquidation Event occurs in respect thereof or it becomes a Corrected Mortgage
Loan. Earned but unpaid Special Servicing Fees shall be payable monthly out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a
Corrected Mortgage Loan was the remediation of a circumstance or condition
relating to the Mortgage Loan Seller's or the Additional Warranting Party's
obligation to repurchase such Mortgage Loan pursuant to Section 2.03. As to
each Corrected Mortgage Loan, subject to the exceptions provided for in the
preceding sentence, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, each collection of
interest (other than Default Interest and, in the case of a Hyper-Amortization
Loan after its Anticipated Repayment Date, Excess Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan. The Workout Fee with respect to any Corrected Mortgage Loan will cease to
be payable if a Servicing Transfer Event occurs with respect thereto or if the
related Mortgaged Property becomes an REO Property; provided that a new Workout
Fee will become payable if and when such Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated other than for
cause or resigns in accordance with clause (ii) of the first paragraph of
Section 6.04, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans
during the period that it acted as Special Servicer and were still such at the
time of such termination or resignation (and the successor Special Servicer
shall not be entitled to any portion of such Workout Fees), in each case until
the Workout Fee for any such Mortgage Loan ceases to be payable in accordance
with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full or discounted payoff from the related Mortgagor or any Liquidation
Proceeds (other than in connection with the purchase of any such Specially
Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to
Section 3.18, by the Master Servicer or the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18 or Section 9.01, or by the Mortgage
Loan Seller or the Additional Warranting Party pursuant to Section 2.03 within
120 days of its discovery or notice (whichever occurred earlier) of the breach
or Document Defect that gave rise to the repurchase obligation, and other than
in connection with the condemnation or other governmental taking of a Mortgaged
Property or REO Property). As to each such Specially Serviced Mortgage Loan or
REO Property, the Liquidation Fee shall be payable from, and shall be
calculated by application of the Liquidation Fee Rate to, such full or
discounted payoff and/or such Liquidation Proceeds (excluding any portion of
such payoff and/or proceeds that represents accrued but unpaid Excess Interest
with respect to a Hyper-Amortization Loan after its Anticipated Repayment Date
or accrued but unpaid Default Interest); provided that no Liquidation Fee will
be payable with respect to any such Specially Serviced Mortgage Loan that
becomes a Corrected Mortgage Loan; and provided, further, that (without
limiting the Special Servicer's right to any Workout Fee that is properly
payable therefrom), no Liquidation Fee will be payable from, or
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based upon the receipt of, Liquidation Proceeds collected as a result of any
purchase of a Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph or in connection with a
condemnation or other governmental taking of a Mortgaged Property or REO
Property.
Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds on or with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and/or the Liquidation 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.
(d) The Special Servicer shall be entitled to receive as additional
special servicing compensation:
(i) (A) to the extent allocable to the period when any Mortgage Loan
is a Specially Serviced Mortgage Loan or to the extent allocable to an REO
Loan, any Net Default Charges actually collected on such Mortgage Loan or
REO Loan, as the case may be, and (B) any assumption fees, modification
fees or similar fees (excluding Prepayment Premiums) actually collected on
or with respect to Specially Serviced Mortgage Loans or REO Loans; and
(ii) interest or other income earned on deposits in the REO Account,
if established, in accordance with Section 3.06(b) (but only to the extent
of the Net Investment Earnings, if any, with respect to the REO Account for
each Collection Period).
To the extent the amounts described in clause (i)(B) of the preceding
paragraph are collected by the Master Servicer, the Master Servicer shall
promptly pay such amounts to the Special Servicer and shall not be required to
deposit such amounts in the Collection Account pursuant to Section 3.04(a).
Additional servicing compensation to which the Master Servicer (or, if so
provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained
thereby) is entitled pursuant to Section 3.11(b) in the form of assumption
fees, modification fees and any similar fees (excluding Prepayment Premiums)
collected by the Special Servicer on Mortgage Loans that are not Specially
Serviced Mortgage Loans or REO Loans, or in the form of charges for beneficiary
statements or demands and amounts collected for checks returned for
insufficient funds with respect to any Mortgage Loans (including, without
limitation, Specially Serviced Mortgage Loans), shall be paid promptly to the
Master Servicer by the Special Servicer.
Notwithstanding anything to the contrary contained herein, any entity
acting as Special Servicer shall be entitled to assign to an Affiliate the
right to receive, for so long as (but only for so long as) such entity
continues to act as Special Servicer, any or all of the items constituting
additional special servicing compensation contemplated by this Section 3.11(d).
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The Special Servicer shall be required to pay out of its own funds all
overhead, general and administrative expenses incurred by it in connection with
its servicing activities hereunder (including, without limitation, payment of
any amounts due and owing to any Sub-Servicers retained by it and the premiums
for any blanket policy obtained by it insuring against hazard losses pursuant
to Section 3.07(b)), if and to the extent such expenses are not payable
directly out of the Collection Account or the REO Account and the Master
Servicer is not required to advance such expenses at the direction of the
Special Servicer, and the Special Servicer shall not be entitled to
reimbursement except as expressly provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within 10 days after
such Servicing Advance is required to be made, the Trustee shall, if it has
actual knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to
the Master Servicer and/or the Special Servicer, as appropriate. If such
Servicing Advance is not made by the Master Servicer or the Special Servicer
within three (3) Business Days after such notice then (subject to Section
3.11(g) below), the Trustee shall make such Servicing Advance. Any failure by
the Master Servicer or the Special Servicer to make a Servicing Advance it is
required to make hereunder shall constitute an Event of Default by the Master
Servicer or the Special Servicer, as the case may be, subject to and as
provided in Section 7.01(a).
(f) As and to the extent permitted by Section 3.05(a), the Master
Servicer, the Special Servicer (to the extent it has not already been
reimbursed for any such Servicing Advance by the Master Servicer) and the
Trustee shall each be entitled to receive interest at the Reimbursement Rate in
effect from time to time, accrued on the amount of each Servicing Advance made
thereby (out of its own funds) for so long as such Servicing Advance is
outstanding, and such interest will be paid: first, out of any Default Charges
collected on or in respect of the related Mortgage Loan or REO Loan; and
second, at any time coinciding with or following the reimbursement of such
Servicing Advance, out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Collection Account. As and to the extent provided
in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse itself,
the Special Servicer or the Trustee, as appropriate, for any Servicing Advance
made thereby as soon as practicable after funds available for such purpose are
deposited in the Collection Account or a Servicing Account.
(g) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance (including, without limitation, an Emergency
Advance) that it determines in its reasonable, good faith judgment would
constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable
Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out
of general collections on the Mortgage Pool on deposit in the Collection
Account. The determination by the Master Servicer, the Special Servicer or, if
applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or
that any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officer's Certificate delivered
promptly to the Trustee (or, if applicable, retained thereby), the Sponsor and
the Rating Agencies, setting forth
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the basis for such determination, together with (if such determination is prior
to the liquidation of the related Mortgage Loan or REO Property) a copy of an
Appraisal of the related Mortgaged Property or REO Property, as the case may
be, which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information, including,
without limitation, engineers' reports, environmental surveys, inspection
reports, rent rolls, income and expense statements or similar reports, that the
Master Servicer or the Special Servicer may have obtained and that supports
such determination. If such an Appraisal shall not have been required and
performed pursuant to the terms of this Agreement, the Master Servicer or the
Special Servicer, as the case may be, may, subject to its reasonable and good
faith determination that such Appraisal will demonstrate the nonrecoverability
of a Servicing Advance, obtain an Appraisal for such purpose at the expense of
the Trust. The Trustee shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Servicing Advance, and the Master
Servicer shall be entitled to rely on any determination of nonrecoverability
that may have been made by the Special Servicer with respect to a particular
Servicing Advance.
(h) Notwithstanding anything to the contrary set forth herein, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an REO Property is involved) pay directly out of the
Collection Account any servicing expense that, if paid by the Master Servicer
or the Special Servicer, would constitute a Nonrecoverable Servicing Advance;
provided that the Master Servicer (or the Special Servicer, if a Specially
Serviced Mortgage Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment is in the best
interests of the Certificateholders (as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Trustee, the Sponsor and the
Rating Agencies, setting forth the basis for such determination and accompanied
by any information that the Master Servicer or the Special Servicer may have
obtained that supports such determination.
SECTION 3.12. Inspections; Collection of Financial Statements.
(a) Commencing in 1999, the Master Servicer shall inspect or cause the
inspection of each Mortgaged Property at least once every two years (or, if the
related Mortgage Loan has a then current balance greater than $2,000,000, at
least once every year), provided that at least 50% of the Mortgaged Properties
(by both number and aggregate Stated Principal Balances of the related Mortgage
Loans) will be inspected each year by the Master Servicer (or an entity
employed by the Master Servicer for such purpose) or, in accordance with the
second succeeding sentence, by the Special Servicer. The Master Servicer shall
be responsible for such inspections only in respect of (i) Mortgage Loans that
are not Specially Serviced Mortgage Loans and (ii) Corrected Mortgage Loans.
The Special Servicer, subject to statutory limitations or limitations set forth
in the related Mortgage Loan documents, shall perform or cause to be performed
a physical inspection of a Mortgaged Property as soon as practicable after the
servicing of the related Mortgage Loan is transferred thereto pursuant to
Section 3.21(a). The Master Servicer and the Special Servicer shall each
prepare or cause to be prepared as soon as reasonably possible a written report
of each such inspection performed or caused to be performed thereby detailing
the condition of the Mortgaged Property and
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specifying the existence of (i) any vacancy in the Mortgaged Property that is,
in the reasonable judgment of the Master Servicer or Special Servicer (or their
respective designees), as the case may be, material and is evident from such
inspection, (ii) any abandonment of the Mortgaged Property, (iii) any change in
the condition or value of the Mortgaged Property that is, in the reasonable
judgment of the Master Servicer or Special Servicer (or their respective
designees), as the case may be, material and is evident from such inspection,
(iv) any waste on or deferred maintenance in respect of the Mortgaged Property
that is evident from such inspection or (v) any capital improvements made that
are evident from such inspection. The Master Servicer and Special Servicer each
shall, within 10 days of the preparation thereof, deliver to the Trustee, the
Rating Agencies and each other a copy of (and, upon request, shall promptly
discuss therewith the contents of) each such written report prepared or caused
to be prepared by or on behalf of it. The Trustee shall make available to
Certificateholders, Certificate Owners and prospective Certificateholders and
Certificate Owners (which prospective Certificateholders and Certificate Owners
have been certified to it as such by a Certificateholder or a Certificate
Owner), in accordance with Section 8.12(b), copies of all the written reports
delivered to it pursuant to this Section 3.12(a). In the absence of actual
knowledge that the Master Servicer or the Special Servicer is in default under
this Section 3.12(a), the Trustee shall have no obligation to confirm that
inspections of the Mortgaged Properties are being performed in accordance with
this Section 3.12(a). The preceding sentence notwithstanding, in the event the
Trustee has received, as of December 31 of any calendar year, inspection
reports with respect to less than 50% of the Mortgaged Properties as set forth
in the first sentence of this Section 3.12(a), the Trustee shall notify the
Master Servicer of such fact in writing on or before January 31 of the
immediately succeeding calendar year. The notice provided by the Trustee to the
Master Servicer of the deficiency in the number of inspection reports provided
to the Trustee, shall constitute notice "requiring the same to be remedied"
within the meaning of Section 7.01(a)(vi) hereof and shall so state on its
face. If the Master Servicer does not provide satisfactory evidence (which
shall include the presentation of the required reports) of the performance of
the number of inspections required pursuant to the first sentence of this
Section 3.12(a) within 30 days of such notice, the Master Servicer shall be
deemed to have failed duly to observe and perform in all material respects its
covenants and agreements set forth in this Section 3.12(a).
(b) The Special Servicer, in the case of the Specially Serviced
Mortgage Loans and REO Properties, and the Master Servicer, in the case of all
other Mortgage Loans, shall make reasonable efforts to collect or otherwise
obtain promptly (from the related Mortgagor in the case of a Mortgage Loan)
annual and quarterly operating statements and rent rolls of the related
Mortgaged Property or REO Property (and financial statements of the related
Mortgagor in the case of a Mortgage Loan), whether or not delivery of such
items is required pursuant to the terms of the related Mortgage. The Special
Servicer, in the case of the Specially Serviced Mortgage Loans and REO
Properties, and the Master Servicer, in the case of all other Mortgage Loans,
shall promptly deliver copies of the collected items to the Trustee, the Rating
Agencies and each other, in each case within 45 days of its receipt thereof. In
the absence of actual knowledge that the Master Servicer or the Special
Servicer is in default under this Section 3.12(b), the Trustee shall have no
obligation to confirm that the Master Servicer or the Special Servicer has or
is attempting to collect any of the items described above in this Section
3.12(b).
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(c) If, with respect to any Mortgage Loan (other than a Specially
Serviced Mortgage Loan), the Special Servicer has any questions for the related
Mortgagor based upon the information received by the Special Servicer pursuant
to Section 3.12(a) or 3.12(b), the Master Servicer shall, in this regard and
without otherwise changing or modifying its duties hereunder, reasonably
cooperate with the Special Servicer in assisting the Special Servicer to
contact and solicit information from such Mortgagor.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will deliver to
the Trustee, with a copy to the Sponsor and each other, on or before March 15
of each year, beginning March 15, 1999, an Officer's Certificate stating that
(i) a review of the activities of the Master Servicer or the Special Servicer,
as the case may be, during the preceding calendar year, and of its performance
under this Agreement during such calendar year, has been made under the signing
officer's supervision, (ii) to the best of such officer's knowledge, based on
such review, the Master Servicer or the Special Servicer, as the case may be,
has in all material respects fulfilled all of its obligations under this
Agreement throughout such calendar year, or, if there has been a material
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof, and (iii) the Master
Servicer or the Special Servicer, as the case may be, has received no notice
regarding the qualification or status as a REMIC of, or otherwise asserting a
tax (other than ad valorem real property taxes or other similar taxes on REO
Property) on the income or assets of, any portion of the Trust Fund from the
Internal Revenue Service or from any other governmental agency or body or, if
it has received any such notice, specifying the details thereof. The signing
officer shall have no personal liability with respect to the content of any
such statement, and the Master Servicer or the Special Servicer, as the case
may be, shall be deemed to have made such statement and shall assume any
liability resulting therefrom.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Sponsor in conforming any
Officer's Certificate delivered pursuant to this Section 3.13 to requirements
imposed by the Commission on the Sponsor in connection with the Commission's
issuance of a no-action letter relating to the Sponsor's reporting requirements
in respect of the Trust pursuant to the Exchange Act.
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning March 15, 1999, each of
the Master Servicer and the Special Servicer, at its expense, shall cause a
firm of independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Sponsor, the Trustee and each other to the effect that such firm has examined
such documents and records as it has deemed necessary and appropriate relating
to the Master Servicer's or the Special Servicer's, as the case may be,
servicing of the Mortgage Loans under this Agreement or the servicing of
mortgage loans similar to the Mortgage Loans under substantially similar
agreements for the preceding calendar year (or during the period from the date
of commencement of the Master
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Servicer's or the Special Servicer's, as the case may be, duties hereunder
until the end of such preceding calendar year in the case of the first such
statement) and that the assertion of management of the Master Servicer or the
Special Servicer, as the case may be, that it maintained an effective internal
control system over servicing of the Mortgage Loans or similar mortgage loans
is fairly stated in all material respects, based upon established criteria,
which statement meets the standards applicable to accountants' reports intended
for general distribution. In rendering its report such firm may rely, as to
matters relating to the direct servicing of securitized commercial and
multifamily mortgage loans by Sub-Servicers, upon comparable reports of firms
of independent certified public accountants rendered on the basis of
examinations conducted in accordance with the same standards (rendered within
one year of such report) with respect to those Sub-Servicers.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Sponsor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Sponsor in connection with the Commission's issuance of a
no-action letter relating to the Sponsor's reporting requirements in respect of
the Trust pursuant to the Exchange Act.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall provide or
cause to be provided to the other such party, the Sponsor, the Trustee and the
Rating Agencies, and to the OTS, the FDIC, and any other federal or state
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans and
the other assets of the Trust Fund that are within its control which may be
required by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer,
as the case may be, designated by it.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee on behalf of the Certificateholders. The
Special Servicer shall sell any REO Property by the end of the third calendar
year following the year in which the Trust acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) is granted an extension of time (an "REO Extension") by the
Internal Revenue Service to sell such REO Property or (ii) obtains for the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the holding by the
Trust of such REO Property subsequent to the end of the third calendar year
following the year in which such acquisition occurred, will not result in the
imposition of taxes on "prohibited transactions" of REMIC I, REMIC II or REMIC
III as defined in Section 860F of the Code or cause REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of
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the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such extended period as is permitted by such REO Extension or
such Opinion of Counsel, as the case may be. Any reasonable expense incurred by
the Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining
the Opinion of Counsel contemplated by clause (ii) of the second preceding
sentence, shall be an expense of the Trust payable out of the Collection
Account pursuant to Section 3.05(a). Any REO Extension shall be requested by
the Special Servicer no later than 60 days before the end of the third calendar
year following the year in which the Trust acquired ownership of the related
REO Property.
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its
own funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds
derived from each REO Property. The REO Account shall be an Eligible Account
and may consist of one account for all the REO Properties. The Special Servicer
shall deposit, or cause to be deposited, in the REO Account, within two
Business Days of receipt, all REO Revenues, Liquidation Proceeds (net of all
Liquidation Expenses paid therefrom) and Insurance Proceeds received in respect
of an REO Property. The Special Servicer is authorized to pay out of related
Liquidation Proceeds any Liquidation Expenses incurred in respect of an REO
Property and outstanding at the time such proceeds are received. Funds in the
REO Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from the REO
Account to pay itself, as additional servicing compensation in accordance with
Section 3.11(d), interest and investment income earned in respect of amounts
held in the REO Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the REO Account for any
Collection Period). The Special Servicer shall give notice to the other parties
hereto of the location of the REO Account when first established and of the new
location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property. Within one Business Day following the
end of each Collection Period, the Special Servicer shall withdraw from the REO
Account and deposit into the Collection Account or deliver to the Master
Servicer (which shall deposit such amounts into the Collection Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the
REO Account such portion of proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
maintenance and disposition of the related REO Property (including without
limitation the creation of a reasonable reserve for repairs, replacements and
necessary capital improvements and other related expenses), such reserve not to
exceed an amount sufficient to cover such items to be incurred during the
following twelve-month period.
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(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged Property and determine the nature of the income
that would be derived from such property if it were acquired by the Trust. If
the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions or would be subject to the tax imposed
on "prohibited transactions" under Section 860F of the Code (either such
tax referred to herein as an "REO Tax"), such Mortgaged Property may be
Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided, that in the good faith and reasonable judgment of the
Special Servicer, it is commercially reasonable) acquire such Mortgaged
Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust incurring or possibly incurring an REO Tax
on income from such property, the Special Servicer shall deliver to the
REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and to the extent reasonably possible, estimates of the
amount of income from each such source. Within a reasonable period of time
after receipt of such plan, the REMIC Administrator shall consult with the
Special Servicer and shall advise the Special Servicer of the Trust's
federal income tax reporting position with respect to the various sources
of income that the Trust would derive under the Proposed Plan. In addition,
the REMIC Administrator shall (to the maximum extent reasonably possible)
advise the Special Servicer of the estimated amount of taxes that the Trust
would be required to pay with respect to each such source of income from
such REO Property. After receiving the information described in the two
preceding sentences from the REMIC Administrator, the Special Servicer
shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO
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Property) or (B) manage and operate such property in a manner that
would not result in the imposition of an REO Tax on the income derived from
such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the good faith and reasonable judgment
of the Special Servicer as to which means would be in the best interest of the
Certificateholders by maximizing (to the extent commercially feasible) the net
after-tax REO Revenues received by the Trust with respect to such property
without materially impairing its marketability and, to the extent consistent
with the foregoing, in the same manner as would prudent mortgage loan servicers
and asset managers operating acquired mortgaged property comparable to such REO
Property. Both the Special Servicer and the REMIC Administrator may consult
with counsel knowledgeable in such matters at (to the extent reasonable) the
expense of the Trust in connection with determinations required under this
Section 3.17(a). Neither the Special Servicer nor the REMIC Administrator shall
be liable to the Certificateholders, the Trust, the other parties hereto or
each other for errors in judgment made in good faith in the reasonable exercise
of their discretion or in reasonable and good faith reliance on the advice of
knowledgeable counsel while performing their respective responsibilities under
this Section 3.17(a) or, to the extent it relates to federal income tax
consequences for the Trust, Section 3.17(b) below. Nothing in this Section
3.17(a) is intended to prevent the sale of a Defaulted Mortgage Loan or REO
Property pursuant to the terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit
of the Certificateholders solely for the purpose of its prompt disposition and
sale in a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as contemplated by Section 3.17(a), result in the receipt by any of
REMIC I, REMIC II or REMIC III of any "income from non-permitted assets" within
the meaning of Section 860F(a)(2)(B) of the Code or in an Adverse REMIC Event
in respect of any such REMIC. Except as provided in Section 3.17(a), the
Special Servicer shall not enter into any lease, contract or other agreement
that causes REMIC I to receive, and (unless required to do so under any lease,
contract or agreement to which the Special Servicer or the Trust may become a
party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure
or other similar exercise of a creditor's rights or remedies with respect to a
Mortgage Loan) shall not cause or allow REMIC I to receive any "net income from
foreclosure property" that is subject to taxation under the REMIC Provisions.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are
consistent with the Servicing Standard and, consistent therewith, shall
withdraw from the REO Account, to the extent of amounts on deposit therein with
respect to any REO Property, funds necessary for the proper operation,
management, maintenance and disposition of such REO Property, including without
limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
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(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in the preceding sentence
with respect to such REO Property, the Special Servicer shall direct the Master
Servicer to make (and the Master Servicer shall so make) Servicing Advances in
such amounts as are necessary for such purposes unless (as evidenced in the
manner contemplated by Section 3.11(g)) the Special Servicer or the Master
Servicer determines, in its reasonable, good faith judgment, that such payment
would be a Nonrecoverable Servicing Advance.
(c) The Special Servicer may (and, except as otherwise permitted by
Section 3.17(a), shall if it would avoid an Adverse REMIC Event) contract with
any Independent Contractor for the operation and management of any REO
Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall be consistent with the provisions of
Treasury Regulation ss.1.856-4(b)(5) and, to the extent consistent
therewith, shall be administered to require that the Independent
Contractor, in a timely manner, (A) to the extent of available revenue from
the REO Property, pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including, without
limitation, those listed in Section 3.17(b) above, and (B) remit all
related revenues collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
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The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly
provided in or contemplated by Sections 2.03 and 9.01.
(b) If the Special Servicer has determined, in its good faith and
reasonable judgment, that any Defaulted Mortgage Loan will become the subject
of a foreclosure sale or similar proceeding, and that the sale of such Mortgage
Loan under the circumstances provided in this Section 3.18(b) or in Section
3.18(c) is in accordance with the Servicing Standard, the Special Servicer
shall promptly so notify in writing the Trustee and the Master Servicer, and
the Trustee shall, within 10 days after receipt of such notice, notify all the
Certificateholders of the Controlling Class. The Majority Certificateholder of
the Controlling Class may at its or their option purchase from the Trust, at a
price equal to the applicable Purchase Price, any such Defaulted Mortgage Loan.
The Purchase Price for any Mortgage Loan purchased under this paragraph (b)
shall be deposited into the Collection Account, and the Trustee, upon receipt
of an Officer's Certificate from the Master Servicer to the effect that such
deposit has been made, shall release or cause to be released to the
Certificateholder(s) effecting such purchase (or any designee thereof) the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Certificateholder(s) effecting
such purchase (or any designee thereof) ownership of such Mortgage Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Certificateholder(s) effecting such purchase (or
any designee thereof).
(c) If the Majority Certificateholder of the Controlling Class has not
purchased any Defaulted Mortgage Loan described in the first sentence of
Section 3.18(b) within 15 days of its having received notice in respect thereof
pursuant to Section 3.18(b) above, either the Special Servicer or, subject to
the Special Servicer's prior rights in such regard, the Master Servicer may at
its option purchase such Mortgage Loan from the Trust, at a price equal to the
Purchase Price. The Purchase Price for any such Mortgage Loan purchased under
this paragraph (c) shall be deposited into the Collection Account, and the
Trustee, upon receipt of an Officer's Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Master Servicer or the Special Servicer, as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer, as applicable, the ownership of such Mortgage Loan. In connection
with any such purchase by the Master Servicer, the Special Servicer shall
deliver the related Servicing File to the Master Servicer.
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(d) The Special Servicer may offer to sell any Defaulted Mortgage Loan
not otherwise purchased pursuant to Section 3.18(b) or Section 3.18(c) above,
if and when the Special Servicer determines, consistent with the Servicing
Standard, that such a sale would be in the best economic interests of the
Trust. Such offer shall be made in a commercially reasonable manner (which, for
purposes hereof, includes an offer to sell without representation or warranty
other than customary warranties of title, loan status, condition and similar
customary matters, if liability for breach thereof is limited to recourse
against the Trust) for a period of not less than 30 days. Unless the Special
Servicer determines that acceptance of any offer would not be in the best
economic interests of the Trust, the Special Servicer shall accept the highest
cash offer received from any Person that constitutes a fair price for such
Mortgage Loan. In the absence of any offer determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted
Mortgage Loan in accordance with Section 3.09 and, otherwise, in accordance
with the Servicing Standard.
The Special Servicer shall use its best efforts to solicit offers for
each REO Property in such manner as will be reasonably likely to realize a fair
price within the time period provided for by Section 3.16(a). The Special
Servicer shall accept the first (and, if multiple offers are received
contemporaneously, highest) cash offer received from any Person that
constitutes a fair price (determined pursuant to Section 3.18(e) below) for
such REO Property. If the Special Servicer reasonably believes that it will be
unable to realize a fair price (determined pursuant to Section 3.18(e) below)
for any REO Property within the time constraints imposed by Section 3.16(a),
the Special Servicer shall dispose of such REO Property upon such terms and
conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash offer, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Master Servicer
not less than five Business Days' prior written notice of its intention to sell
any Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d).
No Interested Person shall be obligated to submit an offer to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
respective Affiliates may make an offer for or purchase any Defaulted Mortgage
Loan or any REO Property pursuant hereto.
(e) Whether any cash offer constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash offer is
from an Interested Person, by the Trustee. In determining whether any offer
received from an Interested Person represents a fair price for any such
Mortgage Loan or REO Property, the Trustee shall be supplied with and shall
rely on the most recent Appraisal or updated Appraisal conducted in accordance
with this Agreement within the preceding 12-month period or, in the absence of
any such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser,
retained by the Special Servicer. Such appraiser shall be selected by the
Special Servicer if neither the Special Servicer nor any Affiliate thereof is
making an offer with respect to a Defaulted Mortgage Loan or REO Property and
shall be selected by the Trustee if the Special Servicer or an
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Affiliate thereof is making such an offer. The cost of any such narrative
appraisal shall be advanced by the Master Servicer, at the direction of the
Special Servicer, and shall constitute a Servicing Advance. When any Interested
Person is among those making an offer with respect to a Defaulted Mortgage Loan
or REO Property, the Special Servicer shall require that all offers be
submitted in writing and be accompanied by a refundable deposit of cash in an
amount equal to 5% of the offered amount. In determining whether any offer from
a Person other than an Interested Person constitutes a fair price for any such
Mortgage Loan or REO Property, the Special Servicer shall take into account (in
addition to the results of any Appraisal, updated Appraisal or narrative
Appraisal that it may have obtained pursuant to this Agreement within the prior
12 months), and in determining whether any offer from an Interested Person
constitutes a fair price for any such Mortgage Loan or REO Property, any
appraiser or other expert in real estate matters shall be instructed to take
into account, as applicable, among other factors, the period and amount of any
delinquency on the affected Mortgage Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy and the obligation to dispose of any REO Property within the time
period specified in Section 3.16(a). Notwithstanding the other provisions of
this Section 3.18, no cash offer from any Interested Person or any Affiliate
thereof in an amount less than the related Purchase Price shall constitute a
fair price for any Defaulted Mortgage Loan or REO Property unless such offer is
the highest cash offer received and at least two additional offers (not
including the offers of Interested Persons or any Affiliates thereof) have been
received from Independent third parties reflecting prices less than the related
Purchase Price. The Purchase Price for any Defaulted Mortgage Loan or REO
Property shall in all cases be deemed a fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit
such amounts into the Collection Account. Any sale of a Defaulted Mortgage Loan
or any REO Property shall be final and without recourse to the Trustee or the
Trust (except such recourse imposed by those representations and warranties
typically given in such transactions, any prorations applied thereto and any
customary closing matters), and if such sale is consummated in accordance with
the terms of this Agreement, none of the Special Servicer, the Master Servicer
or the Trustee shall have any liability to any Certificateholder with respect
to the purchase price therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be
for cash only (unless, as evidenced by an Opinion of Counsel, changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration).
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(h) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash
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, and the Special Servicer may accept a lower cash offer
(from any Person other than itself or an Affiliate) 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 (other than price) offered by the prospective buyer
making the lower offer are more favorable).
SECTION 3.19. Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing Office
and shall, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
Certificate Owner or any Person identified to the Master Servicer as a
prospective transferee of a Certificate or an interest therein, copies of the
Servicing Files; provided that, if the Master Servicer reasonably and in good
faith determines that any item of information contained in such Servicing Files
is of a nature that it should be conveyed to all Certificateholders at the same
time, it shall, as soon as reasonably possible following its receipt of any
such item of information, disclose such item of information to the Trustee as
part of the reports to be delivered to the Trustee by the Master Servicer
pursuant to Section 4.02(b), and until the Trustee has either disclosed such
information to all Certificateholders in a Distribution Date Statement or has
properly filed such information with the Commission on behalf of the Trust
under the Exchange Act, the Master Servicer shall be entitled to withhold such
item of information from any Certificateholder or Certificate Owner or
prospective transferee of a Certificate or an interest therein; and provided,
further, that the Master Servicer shall not be required to make particular
items of information contained in the Servicing File for any Mortgage Loan
available to any Person if the disclosure of such particular items of
information is expressly prohibited by applicable law or the provisions of any
related Mortgage Loan documents; and provided, further, that, except in the
case of the Rating Agencies, the Master Servicer shall be entitled to recover
from any Person reviewing the Servicing Files pursuant to this Section 3.19(a)
its reasonable "out-of-pocket" expenses incurred in connection with making the
Servicing Files available to such Person. Except as set forth in the provisos
to the preceding sentence, copies of all or any portion of any Servicing File
are to be made available by the Master Servicer upon request; however, the
Master Servicer shall be permitted to require payment of a sum sufficient to
cover the reasonable out-of-pocket costs and expenses of providing such
service. The Special Servicer shall, as to each Specially Serviced Mortgage
Loan and REO Property, promptly deliver to the Master Servicer a copy of each
document or instrument added to the related Servicing File, and the Master
Servicer shall in no way be in default under this Section 3.19(a) solely by
reason of the Special Servicer's failure to do so.
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In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Sponsor directs otherwise, (a) in the case of Certificate Owners, a written
confirmation executed by the requesting Person, in form reasonably satisfactory
to the Master Servicer, generally to the effect that such Person is a
beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, written
confirmation executed by the requesting Person, in form reasonably satisfactory
to the Master Servicer, generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting
the information for use in evaluating a possible investment in Certificates and
will otherwise keep such information confidential. All Certificateholders, by
the acceptance of their Certificates, shall be deemed to have agreed to keep
such information confidential, except to the extent that the Sponsor grants
written permission to the contrary. The Master Servicer shall not be liable for
the dissemination of information in accordance with this Section 3.19(a).
(b) Within 30 days (or within such longer period as the Master
Servicer or the Special Servicer, as applicable, is (as certified thereby to
the Trustee in writing) diligently and in good faith proceeding to obtain the
Appraisal referred to below ) after the earliest of (i) the date on which any
Mortgage Loan becomes a Modified Mortgage Loan, (ii) the 90th day following the
occurrence of any uncured delinquency in Monthly Payments with respect to any
Mortgage Loan, (iii) the date on which a receiver is appointed and continues in
such capacity in respect of the Mortgaged Property securing any Mortgage Loan,
(iv) the date on which the Mortgagor under any Mortgage Loan becomes the
subject of bankruptcy, insolvency or similar proceedings, and (v) the date on
which the Mortgaged Property securing any Mortgage Loan becomes an REO Property
(each such Mortgage Loan and any related REO Loan, until it ceases to be such
in accordance with the following paragraph, a "Required Appraisal Loan"), the
Master Servicer or the Special Servicer (whichever is then responsible for
servicing such Mortgage Loan) shall obtain an Appraisal of the related
Mortgaged Property (unless an Appraisal thereof had previously been obtained
within the prior twelve months). The cost of such Appraisal shall be advanced
by the Master Servicer, subject to its being entitled to reimbursement therefor
as a Servicing Advance as provided in Section 3.05(a), such Advance to be made
at the direction of the Special Servicer when the Appraisal is obtained by the
Special Servicer.
With respect to each Required Appraisal Loan (unless such loan has
become a Corrected Mortgage Loan and has remained current for twelve
consecutive Monthly Payments, and no other Servicing Transfer Event has
occurred with respect thereto during such twelve months, in which case it will
cease to be a Required Appraisal Loan), the Special Servicer shall, within 30
days of each anniversary of such loan's becoming a Required Appraisal Loan,
order an update of the prior Appraisal (the cost of which shall be advanced by
the Master Servicer as a Servicing Advance at the direction of the Special
Servicer, subject to the Master Servicer's right to reimbursement as provided
in Section 3.05(a)). Based upon such Appraisal, the Special Servicer shall
redetermine and report to the Trustee the Appraisal Reduction Amount, if any,
with respect to such loan.
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(c) The Master Servicer and the Special Servicer shall each deliver to
the other and to the Trustee (for inclusion in the Mortgage File) and the
Rating Agencies copies of all Appraisals, environmental reports and engineering
reports (or, in each case, updates thereof) obtained with respect to any
Mortgaged Property or REO Property.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, subject to the second following paragraph, to reimburse the Special
Servicer for any Servicing Advances made by the Special Servicer, but not
previously reimbursed (whether pursuant to Section 3.05(a), this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten (10) days of the request therefor
by wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Advance, together with Advance Interest thereon, at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance.
Notwithstanding anything to the contrary contained in this Agreement,
if the Special Servicer (i) is required under any other provision of this
Agreement to direct the Master Servicer to make a Servicing Advance or (ii) is
otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when
incurred, constitute a Servicing Advance, the Special Servicer shall (in the
case of clause (i) preceding), and shall use reasonable efforts to (in the case
of clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and in a timely manner that does
not materially and adversely affect the interests of any Certificateholder and
at least five Business Days prior to the date on which such Servicing Advance
is first required to be made; provided, however, that the Special Servicer
shall have an obligation to make any Emergency Advance or any other Servicing
Advance with respect to which it would, under the circumstances, be
inconsistent with the Servicing Standard for the Special Servicer to request
that the Master Servicer make such Servicing Advance (in lieu of making such
Servicing Advance itself and seeking reimbursement therefor as provided
herein); and provided, further, that the Special Servicer shall, with respect
to Specially Serviced Mortgage Loans and REO Properties, make any Servicing
Advance that it fails to timely request the Master Servicer to make. The Master
Servicer shall (subject to the following paragraph) have the obligation to make
any such Servicing Advance that it is requested by the Special Servicer to make
within five Business Days of the Master Servicer's receipt of such request.
Subject to the foregoing, the Special Servicer shall be relieved of any
obligations with respect to a Servicing Advance that it timely requests the
Master Servicer to make (regardless of whether or not the Master Servicer shall
make such Servicing Advance), other than an Emergency Advance or any other
Servicing Advance with respect to which it would, under the circumstances, be
inconsistent with the
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Servicing Standard for the Special Servicer to request that the Master Servicer
make such Servicing Advance (in lieu of making such Servicing Advance itself
and seeking reimbursement therefor as provided herein). The Master Servicer
shall be entitled to reimbursement for any Servicing Advance made by it at the
direction of the Special Servicer, together with Advance Interest thereon, at
the same time, in the same manner and to the same extent as the Master Servicer
is entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer
shall not be required to reimburse the Special Servicer for, or make at the
Special Servicer's direction, any Servicing Advance if the Master Servicer
determines in its reasonable, good faith judgment that the Servicing Advance
which the Special Servicer is directing the Master Servicer to reimburse it for
or make hereunder, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is or would be, if made, a Nonrecoverable
Servicing Advance. The Master Servicer shall notify the Special Servicer and
the Trustee in writing of such determination. Such notice shall not obligate
the Special Servicer to make such Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate of all Prepayment Interest Shortfalls incurred (reduced (to not less
than zero) by the aggregate of all Prepayment Interest Excesses collected) in
connection with Principal Prepayments received in respect of the Mortgage Pool
during the most recently ended Collection Period, and (ii) that portion of its
aggregate Master Servicing Fee for the related Collection Period that is, in
the case of each and every Mortgage Loan and REO Loan, calculated at 0.02% per
annum.
(f) Except under the same circumstances that it would be permitted to
waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer and the Special Servicer each may, consistent
with the Servicing Standard, agree to any modification, waiver or amendment of
any term of, forgive or defer the payment of interest (including, without
limitation, Default Interest and Excess Interest) on and principal of, forgive
Default Charges and Prepayment Premiums on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Mortgage Loan it is required to service and
administer hereunder, without the consent of the Trustee or any
Certificateholder, subject, however, to each of the following limitations,
conditions and restrictions:
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(i) other than as expressly provided in Section 2.03(b) (with respect
to a modification of the defeasance provisions under the Brunswig Square
Office Building Loan within 90 days following the Closing Date), Section
3.02 (with respect to Default Charges), Section 3.08 (with respect to
due-on-sale and due-on-encumbrance clauses) and Section 3.20(f) (with
respect to Excess Interest), the Master Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan
it is required to service and administer hereunder that would affect the
amount or timing of any related payment of principal, interest or other
amount payable thereunder or, in the Master Servicer's good faith and
reasonable judgment, materially impair the security for such Mortgage Loan
or reduce the likelihood of timely payment of amounts due thereon; however,
the Special Servicer may agree to any modification, waiver or amendment of
any term of, extend the maturity of or take any of the other acts
referenced in this Section 3.20(a) with respect to, a Specially Serviced
Mortgage Loan that would have any such effect, but only if a material
default on such Mortgage Loan has occurred or, in the Special Servicer's
reasonable and good faith judgment, a default in respect of payment on such
Mortgage Loan is reasonably foreseeable, and such modification, waiver,
amendment or other action is reasonably likely to produce a greater
recovery to Certificateholders (as a collective whole) on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate (or, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, the related Net Mortgage Rate in effect
immediately prior to such Anticipated Repayment Date)), than would
liquidation;
(ii) the Special Servicer may not, in connection with any particular
extension, (A) extend the maturity date of any Mortgage Loan beyond June
18, 2028, (B) in the case of a Mortgage Loan secured by a Mortgage on the
applicable Mortgagor's leasehold interest in all or any material portion of
the related Mortgaged Property (but not by a Mortgage on the fee interest
in such Mortgaged Property or portion thereof), extend the maturity date of
such Mortgage Loan beyond a date that is ten years prior to the expiration
of the related Ground Lease or (C) in the case of a Mortgage Loan that is a
Balloon Mortgage Loan, extend the maturity date beyond the amortization
term thereof (without regard to the Balloon Payment);
(iii) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 3.20(a) or in Section 3.08
with respect to, any Mortgage Loan that would (A) cause REMIC I, REMIC II
or REMIC III to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day of any such REMIC under the REMIC Provisions or (B) cause
any Mortgage Loan to cease to be a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (neither the Master Servicer nor the
Special Servicer shall be liable for decisions made under this subsection
which were made in good faith and, unless it would constitute bad faith or
negligence to do so, each of the Master Servicer and the Special Servicer
may rely on Opinions of Counsel in making such decisions);
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(iv) neither the Master Servicer nor the Special Servicer shall permit
any Mortgagor to add or substitute any collateral for an outstanding
Mortgage Loan, which additional or substitute collateral constitutes real
property, unless the Special Servicer shall have first determined in
accordance with the Servicing Standard, based upon a Phase I Environmental
Assessment (and such additional environmental testing as the Special
Servicer deems necessary and appropriate) prepared within the 12-month
period prior to such determination by an Independent Person who regularly
conducts Phase I Environmental Assessments (and such additional
environmental testing), at the expense of the Mortgagor, that such
additional or substitute collateral is in compliance with applicable
environmental laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws and/or regulations; and
(v) neither the Master Servicer nor the Special Servicer shall release
any collateral securing an outstanding Mortgage Loan (including, without
limitation, as part of a substitution of collateral), except in connection
with a payment in full or, subject to the other provisions of this Section
3.20, a discounted payoff of such Mortgage Loan, or except as provided in
Section 3.09(d), or except where the Rating Agencies have been notified in
writing and (A) either (1) the use of the collateral to be released will
not, in the Master Servicer's or Special Servicer's, as the case may be,
good faith and reasonable judgment, materially and adversely affect the Net
Operating Income being generated by or the use of the related Mortgaged
Property, or (2) there is a corresponding principal paydown of such
Mortgage Loan in an amount at least equal to, or a delivery of substitute
collateral with an appraised value at least equal to, the appraised value
of the collateral to be released and (B) the remaining Mortgaged Property
and any substitute collateral is, in the Master Servicer's or Special
Servicer's, as the case may be, good faith and reasonable judgment,
adequate security for the remaining Mortgage Loan;
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any modification of any term
of any Mortgage Loan that either occurs automatically, or results from the
exercise of a unilateral option by the Mortgagor within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(ii), in any event under the terms of such
Mortgage Loan in effect on the Closing Date, and (y) notwithstanding clauses
(i) through (v) above, neither the Master Servicer nor the Special Servicer
shall be required to oppose the confirmation of a plan in any bankruptcy or
similar proceeding involving a Mortgagor if in their reasonable and good faith
judgment such opposition would not ultimately prevent the confirmation of such
plan or one substantially similar.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders or any other Person if the
Special Servicer's analysis and determination that the modification, waiver,
amendment or other action contemplated by Section 3.20(a) (with respect to
Specially Serviced Mortgage Loans) is reasonably likely to produce a greater
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recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and
determination were made on a reasonable basis in good faith by the Special
Servicer and the Special Servicer has complied with the Servicing Standard in
ascertaining the pertinent facts. Each such determination shall be evidenced by
an Officer's Certificate to such effect to be delivered by the Special Servicer
to the Trustee.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, solely for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit; provided,
however, that this provision is in no way intended to affect amounts actually
due and owing from the related Mortgagor under such Mortgage Loan.
(d) The Master Servicer and the Special Servicer each may, as a
condition to its granting any request by a Mortgagor for consent, modification,
waiver or indulgence or any other matter or thing (except with respect to any
waiver pursuant to subsection (f) below), the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion
pursuant to the terms of the instruments evidencing or securing the related
Mortgage Loan and is permitted by the terms of this Agreement, require that
such Mortgagor pay to it, as additional servicing compensation, a reasonable
and customary fee (not to exceed 1.0% of the unpaid principal balance of the
related Mortgage Loan) for the additional services performed in connection with
such request, together with any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Mortgage Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party 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
3.20 and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party), 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. In addition,
following the execution of any modification, waiver or amendment agreed to by
the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer
shall deliver to the Master Servicer and the Trustee an Officer's Certificate
setting forth in reasonable detail the basis of the determination made by it
pursuant to clause (i) of Section 3.20(a).
(f) With respect to any Hyper-Amortization Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, in its discretion, to
waive (such waiver to be in writing addressed to the related Mortgagor, with a
copy to the Trustee) all or any accrued Excess Interest if, prior to the
related maturity date, the related Mortgagor has requested the right to prepay
the Mortgage Loan in full together with all other payments required by the
Mortgage Loan in connection with such prepayment except for such accrued Excess
Interest, provided that the Master Servicer's determination to waive the right
to such accrued Excess Interest is reasonably likely to produce a
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greater payment to Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate in effect
immediately prior to the related Anticipated Repayment Date) than a refusal to
waive the right to such accrued Excess Interest. The Master Servicer will have
no liability to the Trust, the Certificateholders or any other person so long
as such determination is based on such criteria. In addition, within 90 days
following the Closing Date, the Master Servicer shall forward to the
Mortgagor under the Mortgage Loan identified on the Mortgage Loan Schedule
by control number C033 and property name Minneapolis City Center, a letter
of modification whereby the Master Servicer, on behalf of the Trustee as
mortgagee of record, unilaterally and irrevocably agrees that the Excess
Interest Rate for such Mortgage Loan will equal 2% (so that the Mortgage Rate
for such Mortgage Loan following its Anticipated Repayment Date will equal
8.72% per annum).
(g) With respect to any Mortgage Loan which permits release of the
related Mortgaged Property through the exercise a Defeasance Option, the Master
Servicer shall, to the extent consistent with and permitted by the applicable
Mortgage Loan documents, permit the exercise of such Defeasance Option on any
Due Date occurring more than two years after the Startup Day (the "Release
Date") only upon the satisfaction of the following conditions:
(i) No event of default shall exist under the related Mortgage Note;
(ii) The Mortgagor shall have paid on such Release Date (A) all
interest accrued and unpaid on the principal balance of the related
Mortgage Note to and including the Release Date; (B) all other sums,
excluding scheduled interest or principal payments due under such Mortgage
Note after the Release Date and (C) any costs and expenses incurred in
connection with such release;
(iii) The Mortgagor shall have delivered Defeasance Collateral
providing payments on or prior to all successive scheduled payment dates
from the Release Date to the related Stated Maturity Date, and in an amount
equal to or greater than the scheduled payments due on such dates under the
Mortgage Loan;
(iv) The Mortgagor shall have delivered a security agreement granting
the Trust a first priority security interest in the Defeasance Collateral;
(v) The Master Servicer shall have received an Opinion of Counsel from
the related Mortgagor (which shall be an expense of the related Mortgagor)
to the effect that the Trust has a first priority security interest in the
Defeasance Collateral and that the assignment thereof is valid and
enforceable;
(vi) The Master Servicer shall have obtained at the related
Mortgagor's expense a certificate from an Independent certified public
accountant certifying that the Defeasance Collateral complies with the
requirements of the related Mortgage Note;
(vii) If such Mortgage Loan so requires and provides for the related
Mortgagor to pay the cost thereof, the Master Servicer shall have obtained
an Opinion of Counsel from the related Mortgagor to the effect that such
release would not cause any of REMIC I, REMIC II or REMIC III 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;
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(viii) The Mortgagor shall have provided evidence to the Master
Servicer demonstrating that the lien of the related Mortgage is being
released to facilitate the disposition of the Mortgaged Property or another
customary commercial transaction, and not as part of an arrangement to
collateralize the Certificates with obligations that are not real estate
mortgages; and
(ix) The Master Servicer shall have obtained written confirmation from
each Rating Agency that the related Mortgagor's exercise of such Defeasance
Option would not result in a qualification, downgrade or withdrawal of any
rating then assigned by such Rating Agency to any Class of Certificates.
In connection with the related Mortgagor's exercise of the Defeasance
Option under any Defeasance Loan, the Master Servicer shall not consent to a
new Person becoming the Mortgagor on the subject Defeasance Loan unless either
such new Person is acquiring the Mortgaged Property that was the initial
security for the Defeasance Loan or the Defeasance Loan is not, and was not at
any time, a personal liability (without regard to customary exceptions) of the
Mortgagor.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the Master Servicer shall promptly give notice
thereof, and deliver the related Servicing File, to the Special Servicer and
shall use its best efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records
stored electronically on computer tapes, magnetic discs and the like) relating
to the Mortgage Loan and reasonably requested by the Special Servicer to enable
it to assume its functions hereunder with respect thereto without acting
through a Sub-Servicer. The Master Servicer shall use its best efforts to
comply with the preceding sentence within five Business Days of the occurrence
of each related Servicing Transfer Event.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, the Special Servicer shall promptly give notice
thereof, and return the related Servicing File (or a copy thereof to the extent
a copy had been received by the Special Servicer), to the Master Servicer and
upon giving such notice, and returning such Servicing File (or copy thereof),
to the Master Servicer, the Special Servicer's obligation to service such
Mortgage Loan, and the Special Servicer's right to receive the Special
Servicing Fee with respect to such Mortgage Loan, shall terminate, and the
obligations of the Master Servicer to service and administer such Mortgage Loan
shall resume.
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Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting (based on reports delivered by the Special Servicer) and
other basic Master Servicer administrative functions with respect to Specially
Serviced Mortgage Loans, provided that the Special Servicer shall establish
procedures for the Master Servicer as to the application of receipts and
tendered payments and shall have the exclusive responsibility for and authority
over all contacts (including billing and collection) with and notices to
Mortgagors and similar matters relating to each Specially Serviced Mortgage
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master Servicer and the Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized
Mortgage Loans constituting part of the same Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at any
time that a continuing Servicing Transfer Event exists with respect to another
Cross-Collateralized Mortgage Loan in the same Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by
the definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and shall provide
to the Trustee and the Master Servicer copies of any additional related
Mortgage Loan information, including correspondence with the related Mortgagor
generated while such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, with the consent of the Sponsor, the
Special Servicer, may each enter into Sub-Servicing Agreements to provide for
the performance by third parties of any or all of its obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement and does not subject the Trust to any
liability; (ii) expressly or effectively provides that if the Master Servicer
or Special Servicer, as the case may be, shall for any reason no longer act in
such capacity hereunder (including, without limitation, by reason of an Event
of Default), any successor to the Master Servicer or the Special Servicer, as
the case may be, hereunder (including the Trustee if the Trustee has become
such successor pursuant to
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Section 7.02) may thereupon either assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer or Special Servicer, as the case may be, under such agreement or,
subject to the provisions of Section 3.22(d), terminate such rights and
obligations, in either case without payment of any fee except as set forth in
Section 3.22(d); (iii) prohibits the Sub-Servicer from modifying any Mortgage
Loan or commencing any foreclosure or similar proceedings with respect to any
Mortgaged Property without the consent of the Master Servicer or the Special
Servicer; (iv) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer (other than the Midland Sub-Servicing Agreement and the Dover
House Sub-Servicing Agreement), expressly or effectively provides (unless the
Special Servicer agrees otherwise) that such agreement shall be suspended or
terminated with respect to any Mortgage Loan serviced thereunder at the time
such Mortgage Loan becomes a Specially Serviced Mortgage Loan, and also
expressly or effectively provides (unless the Special Servicer agrees
otherwise) that the Sub-Servicer shall not receive or accrue an
entitlement to any sub-servicing compensation in respect of a Specially
Serviced Mortgage Loan or an REO Loan; and (v) in the case of a Sub-Servicing
Agreement entered into by the Special Servicer, relates only to Specially
Serviced Mortgage Loans or REO Properties and expressly or effectively provides
that such agreement shall terminate with respect to any such Mortgage Loan that
becomes a Corrected Mortgage Loan. References in this Agreement to actions
taken or to be taken by the Master Servicer or the Special Servicer, as the
case may be, include actions taken or to be taken by a Sub-Servicer on behalf
of the Master Servicer or the Special Servicer, as the case may be; and, in
connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer or the Special Servicer, as the case may be,
hereunder to make Advances shall be deemed to have been advanced by the Master
Servicer or the Special Servicer, as the case may be, out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the
same manner and out of the same funds as if such Sub-Servicer were the Master
Servicer or the Special Servicer, as the case may be, and, for so long as they
are outstanding, such Advances shall accrue interest in accordance with Section
3.11(f) and/or Section 4.03(d), such interest to be allocable between the
Master Servicer or the Special Servicer, as the case may be, and such
Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other such party, the
Trustee and the Sponsor in writing promptly of the appointment by it of any
Sub-Servicer, and shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents; provided that
the foregoing requirements set forth in this sentence shall not apply in the
case of the Sub-Servicing Agreements in effect as of the Closing Date that are
listed on Schedule II hereto or in the case of the Sub-Servicers thereunder.
(b) Each Sub-Servicer (i) shall be authorized to transact business in
the state or states in which the Mortgaged Properties for the Mortgage Loans it
is to service are situated, if and to the extent required by applicable law,
and (ii) other than Dover House Capital, Inc., shall be an approved
conventional seller/servicer of multifamily mortgage loans for Freddie Mac or
Fannie Mae or a HUD-Approved Servicer.
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(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee,
the Certificateholders or the Trust) each monitor the performance and enforce
the obligations of its Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the terms of this Agreement, and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer or the Special Servicer, as the
case may be, in its good faith business judgment, would require were it the
owner of the Mortgage Loans.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II hereto, the Dover House
Sub-Servicing Agreement and the Midland Sub-Servicing Agreement, the initial
Master Servicer in its partnership capacity hereby agrees that it shall not,
in its capacity as Master Servicer, terminate any Sub-Servicer thereunder
without cause. In the event of the resignation, removal or other termination
of the initial Master Servicer (or any successor Master Servicer) hereunder
for any reason, the successor to the initial Master Servicer (or to such
successor Master Servicer) shall elect, with respect to any Sub-Servicing
Agreement existing at the time of such termination (i) to assume the rights
and obligations of the predecessor Master Servicer under such Sub-Servicing
Agreement and continue the sub-servicing arrangements thereunder on the same
terms (including without limitation the obligation to pay the same
sub-servicing fee), (ii) except for the Sub-Servicing Agreements entered into
by the Master Servicer with Dover House Capital, Inc. and Midland Loan
Services, Inc. as of, or within 90 days following, the Closing Date, to enter
into a new Sub-Servicing Agreement with such Sub-Servicer and on such terms as
the new Master Servicer and such Sub-Servicer shall mutually agree (it being
understood that such Sub-Servicer is under no obligation to accept any such
new Sub-Servicing Agreement, to enter into or continue negotiations with the
new Master Servicer or to resign if such new Sub-Servicing Agreement is not
mutually agreed upon) or (iii) except for the Sub-Servicing Agreements entered
into by the Master Servicer with Dover House Capital, Inc. and Midland Loan
Services, Inc. as of, or within 90 days following, the Closing Date, to
terminate such Sub-Servicing Agreement without cause, provided that no
Sub-Servicer may be terminated without cause unless it receives Sub-Servicer
Termination Compensation. For purposes hereof, a Sub-Servicer shall receive
"Sub-Servicer Termination Compensation" if any successor Master Servicer
elects to terminate such Sub-Servicer without cause, in which case such
successor Master Servicer shall pay to such Sub-Servicer a fee (a "Sub-Servicer
Termination Fee") in an amount equal to four (4) times the product of (i) the
Primary Servicing Fee Rate in effect under such Sub-Servicing Agreement at the
time of such Sub-Servicer's termination and (ii) the then-current outstanding
principal balance of the Mortgage Loans serviced by such Sub-Servicer. Nothing
in the foregoing provisions of this Section 3.22(d) shall limit the ability of
the initial or a successor Master Servicer to terminate a Sub-Servicer at any
time for cause; provided, however, that the parties hereto understand and
agree that the refusal or failure of a Sub-Servicer to enter into or continue
negotiations with a successor Master Servicer concerning a new Sub-Servicing
Agreement shall not constitute cause for termination. It shall be the corporate
obligation (not reimbursable by the Trust or any of the other parties to this
Agreement) of the Person, who as successor Master Servicer, terminates any
Sub-Servicer without cause, and of its successors and assigns in such capacity
(to the extent contemplated by the second preceding
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sentence), to pay Sub-Servicer Termination Compensation to such terminated
Sub-Servicer. References in this Section 3.22(d) to Master Servicer, successor
Master Servicer or subsequent successor Master Servicer shall mean the Trustee,
if it is then Master Servicer, successor Master Servicer or subsequent Master
Servicer pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing
and administering the Mortgage Loans for which it is responsible.
SECTION 3.23. Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any
time and from time to time replace any existing Special Servicer or any Special
Servicer that has resigned or otherwise ceased to serve as Special Servicer.
Such Majority Certificateholder shall so designate a Person to so serve by the
delivery to the Trustee of a written notice stating such designation, subject
to the approval of the Trustee, which approval shall not be unreasonably
withheld. The Trustee shall, promptly after receiving any such notice, so
notify the Rating Agencies. If the Trustee approves the designated Person
(based upon the servicing qualifications and financial condition of such
designated Person) as a replacement Special Servicer, which approval shall not
be unreasonably withheld, the designated Person shall become the Special
Servicer as of the date the Trustee shall have received: (i) written
confirmation from each Rating Agency stating that if the designated Person were
to serve as Special Servicer hereunder, none of the then-current ratings
assigned by such Rating Agency to the respective Classes of the Certificates
would be qualified, downgraded or withdrawn as a result thereof; (ii) a written
acceptance of all obligations of the Special Servicer under this Agreement,
executed by the designated Person; and (iii) an Opinion of Counsel (at the
expense of the Person designated to become the Special Servicer or at the
expense of the Majority Certificateholder that made the designation) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 3.23, that upon the execution and delivery of the
written acceptance referred to in the immediately preceding clause (ii), the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. The existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided,
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however, that (i) the terminated Special Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the effective date of such resignation, whether in respect of Servicing
Advances or otherwise, (ii) if it was terminated without cause, it shall be
entitled to a portion of certain Workout Fees thereafter received on the
Corrected Mortgage Loans (but only if and to the extent permitted by Section
3.11(c)), and (iii) it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03, notwithstanding any
such resignation. Such terminated Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of
its responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the terminated Special Servicer to the REO Account or
delivered to the Master Servicer or that are thereafter received by the
terminated Special Servicer with respect to Specially Serviced Mortgage Loans
and REO Properties.
SECTION 3.24. Confidentiality.
The Master Servicer and the Special Servicer shall each keep
confidential and shall not disclose to any Person other than each other, the
Sponsor, the Trustee and the Rating Agencies, without the related
Sub-Servicer's prior written consent, any information which it obtains in its
capacity as Master Servicer or Special Servicer with regard to the Sub-Servicer
(other than the name of the Sub-Servicer) or the Mortgage Loans or any related
Mortgagor including, without limitation, credit information with respect to any
such Mortgagor (collectively, "Confidential Information"), except (i) to the
extent that it is appropriate for the Master Servicer to do so in working with
legal counsel, auditors, taxing authorities or other governmental authorities,
(ii) to the extent required by this Agreement or any Sub-Servicing Agreement,
(iii) to the extent such information is otherwise publicly available, (iv) to
the extent such disclosure is required by law or (v) to the extent such
information is required to be delivered to third parties (including, without
limitation, property inspectors, tax service companies, insurance carriers, and
data systems vendors) in connection with the performance of the Master
Servicer's or the Special Servicer's obligations hereunder. For purposes of
this paragraph, the terms "Master Servicer" and "Special Servicer" shall mean
the divisions or departments of such corporate entities involved in providing
services hereunder and their respective officers, directors and employees, and
shall not include any other divisions or departments, or any Affiliates, of the
Master Servicer or Special Servicer (including without limitation any investor
in any of the Certificates and any such division, department or Affiliate
engaged in the origination of, or investment in, commercial or multifamily
mortgage loans), all of which shall be regarded as Persons not entitled to
Confidential Information.
SECTION 3.25. No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit or
permit any Affiliate to solicit, either directly or indirectly, prepayments of
the Mortgage Loans; provided however, that the foregoing restriction shall not
be interpreted to prohibit such solicitation by a division or department of, or
an Affiliate of, the Master Servicer or the Special Servicer if such
solicitation
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occurs incidentally in the normal course of business and such solicitation is
not conducted, in whole or in part, (i) by a Person engaged at any time in
activities relating to the servicing of Mortgage Loans or (ii) based upon or
otherwise with the benefit of any information obtained by or through the Master
Servicer or Special Servicer or from documentation relating to the
Certificates, including without limitation any listing of the Mortgage Loans or
related Mortgagors or Mortgaged Properties. Each Sub-Servicing Agreement shall
contain a provision identical to the foregoing with respect to the related
Sub-Servicer.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01. Distributions on the Certificates.
(a) On each Distribution Date, the Trustee shall apply amounts on
deposit in the Distribution Account, in each case to the extent of the
remaining portion of the Available Distribution Amount, in the following order
of priority:
(i) to distributions of interest to the Holders of the Class A-1
Certificates, the Holders of the Class A-2 Certificates and the Holders of
the Class X Certificates, pro rata in accordance with the respective
amounts of Distributable Certificate Interest payable in respect of such
Classes of Certificates described in this clause (i), in an amount equal to
all Distributable Certificate Interest in respect of each such Class of
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(ii) to distributions of principal, first to the Holders of the Class
A-1 Certificates and second to the Holders of the Class A-2 Certificates,
in each case, in an amount (not to exceed the Class Principal Balance of
such Class of Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1 Certificates
and the Holders of the Class A-2 Certificates, pro rata in accordance with
the respective amounts of previously allocated Realized Losses and
Additional Trust Fund Expenses reimbursable in respect of such Classes of
Certificates described in this clause (iii), in an amount equal to, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, that were previously allocated to each such Class of Certificates
and that remain unreimbursed immediately prior to such Distribution Date;
(iv) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1 and Class A-2
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class B Certificates, in an amount (not to exceed the
Class Principal Balance of the Class B Certificates outstanding immediately
prior to such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
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(vi) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class B Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(vii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A-1, Class A-2 and
Class B Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class C Certificates, in an amount (not to
exceed the Class Principal Balance of the Class C Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(ix) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class C Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1, Class A-2,
Class B and Class C Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class D Certificates, in
an amount (not to exceed the Class Principal Balance of the Class D
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire remaining Principal Distribution Amount for such Distribution
Date;
(xii) to distributions to the Holders of the Class D Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class D Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
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(xiv) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C and Class D Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class E Certificates, in
an amount (not to exceed the Class Principal Balance of the Class E
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire remaining Principal Distribution Amount for such Distribution
Date;
(xv) to distributions to the Holders of the Class E Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class E Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C, Class D and Class E Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class F
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class F Certificates outstanding immediately prior to such Distribution
Date) equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class F Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(xix) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E and Class F Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
G Certificates, in an amount (not to exceed the Class Principal Balance of
the Class G Certificates outstanding immediately prior to such Distribution
Date) equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxi) to distributions to the Holders of the Class G Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class G Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
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(xxii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F and Class G Certificates have
been reduced to zero, to distributions of principal to the Holders of the
Class H Certificates, in an amount (not to exceed the Class Principal
Balance of the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxiv) to distributions to the Holders of the Class H Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class H Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, in an amount (not to exceed the
Class Principal Balance of the Class J Certificates outstanding immediately
prior to such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class J Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class K Certificates, in an amount (not to exceed the
Class Principal Balance of the Class K Certificates outstanding immediately
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prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxx) to distributions to the Holders of the Class K Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class K Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(xxxi) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxii) if the Class Principal Balances of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and
Class K Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class L Certificates, in an amount (not to
exceed the Class Principal Balance of the Class L Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxxiii) to distributions to the Holders of the Class L Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class L Certificates and that remain unreimbursed immediately prior to
such Distribution Date;
(xxxiv) to make distributions to the Holders of the Class R-III
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.05(a), over (B)
the aggregate distributions made in respect of the REMIC III Regular
Certificates on such Distribution Date pursuant to clauses (i) through
(xxxiii) above;
(xxxv) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.05(e), over (B)
the aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.05(a); and
(xxxvi) to distributions to the Holders of the Class R-I Certificates,
in an amount equal to the balance, if any, of the Available Distribution
Amount for such Distribution Date remaining after the distributions to be
made on such Distribution Date pursuant to clauses (i) through (xxxv)
above;
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provided that, on each Distribution Date coinciding with or following the
Senior Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the respective Classes of Class A
Certificates, subject to available funds, up to an amount equal to, and pro
rata as among such Classes in accordance with, the respective then-outstanding
Class Principal Balances of such Classes of Certificates, and without regard to
the Principal Distribution Amount for such date; and provided, further, that,
on the Final Distribution Date, the payments of principal to be made pursuant
to any of clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi),
(xxix) and (xxxii) above with respect to any Class of Sequential Pay
Certificates, will be so made to the Holders thereof, subject to available
funds, up to an amount equal to the entire then-outstanding Class Principal
Balance of such Class of Certificates, and without regard to the Principal
Distribution Amount for such date. References to "remaining Principal
Distribution Amount" in clause (ii) above, in connection with distributions of
principal to be made to the Holders of either Class of Class A Certificates on
any Distribution Date prior to the earlier of the Senior Principal Distribution
CrossOver Date and the Final Distribution Date: (x) shall be, in the case of
the Class A-1 Certificates, to the Principal Distribution Amount for such
Distribution Date; and (y) shall be, in the case of the Class A-2 Certificates,
to the Principal Distribution Amount for such Distribution Date, net of any
distributions of principal made on such date to the Holders of the Class A-1
Certificates. References to "remaining Principal Distribution Amount" in any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix) and
(xxxii) above, in connection with the distributions of principal to be made to
the Holders of any Class of Sequential Pay Certificates on any Distribution
Date prior to the Final Distribution Date, shall be to the Principal
Distribution Amount for such Distribution Date, net of any distributions of
principal made on such date to the Holders of each other Class of Sequential
Pay Certificates that has a higher Payment Priority.
Any Prepayment Premium (whether described in the related Mortgage Loan
documents as a fixed prepayment premium or a yield maintenance amount) actually
collected with respect to a Mortgage Loan or REO Loan during any particular
Collection Period will be distributed on the related Distribution Date as
follows:
(i) first, to the Holders of the respective Class or Classes of
Sequential Pay Certificates (other than any Excluded Class thereof) then
entitled to distributions of principal on such Distribution Date, up to an
amount equal to the corresponding Additional Yield Amount (as defined
below) for each such Class of Certificates, pro rata in accordance with
their respective entitlements if there is more than one such Class of
Certificates; and
(ii) then, to the extent of any portion of such Prepayment Premium
remaining following the distributions described in the preceding clause
(i), to the Holders of the Class X Certificates.
If a Prepayment Premium is distributable on any Distribution Date,
then the applicable "Additional Yield Amount" for any Class of Sequential Pay
Certificates (other than any Excluded Class thereof) entitled to distributions
of principal on such Distribution Date in reduction of its Class
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Principal Balance, shall be an amount equal to the product of (a) such
Prepayment Premium, multiplied by (b) a fraction, which in no event will be
greater than one or less than zero, the numerator of which is equal to the
positive excess, if any, of (i) the Pass-Through Rate for such Class of
Sequential Pay Certificates over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for the Mortgage Loan or REO Loan, as the case may be, as to
which such Prepayment Premium was collected, over (ii) the related Discount
Rate, multiplied by (c) a fraction, the numerator of which is equal to the
portion of the Principal Distribution Amount allocated to such Class of
Sequential Pay Certificates for such Distribution Date, and the denominator of
which is equal to the Principal Distribution Amount for such Distribution Date.
The "Discount Rate" with respect to any prepaid Mortgage Loan or REO
Loan , for the purpose of allocating any Prepayment Premium received thereon or
with respect thereto among the respective Classes of Sequential Pay
Certificates (other than any Excluded Class thereof) on any Distribution Date,
shall be a rate determined by the Trustee, in good faith, equal to the average
yield for "This Week" as most recently reported by the Federal Reserve Board in
Federal Reserve Statistical Release H.15 (519) for the constant maturity
treasury having a maturity coterminous with the maturity date or, in the case
of a Hyper-Amortization Loan, the Anticipated Repayment Date of the prepaid
Mortgage Loan or REO Loan as of the related Determination Date. If there is no
Discount Rate for instruments having a maturity coterminous with the remaining
term (to maturity or Anticipated Repayment Date, as applicable) of the
applicable Mortgage Loan or REO Loan, then the Discount Rate will be equal to
the interpolation of the yields of the constant maturity treasuries with
maturities next longer and shorter than such remaining term (to maturity or
Anticipated Repayment Date, as applicable).
(b) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class on each Distribution Date shall be made to the Certificateholders of the
respective Class of record at the close of business on the related Record Date
and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date or, in the case of the initial Distribution
Date, as of the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. The final distribution on each Certificate
(determined, in the case of a Sequential Pay Certificate, without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Certificate) will be made in like manner,
but only upon presentation and surrender of such Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final distribution. Any distribution that is to be
made with respect to a Sequential Pay Certificate in reimbursement of a
Realized Loss or Additional Trust Fund Expense previously allocated thereto,
which reimbursement is to occur after the date on which such
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Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Certificateholder that surrendered
such Certificate as such address last appeared in the Certificate Registrar or
to any other address of which the Trustee was subsequently notified in writing.
(c) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of
its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Sponsor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(d) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund in respect of their Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(e) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined, in the case of a Class of Sequential Pay Certificates, without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to such Class of Certificates) will be
made on the next Distribution Date, the Trustee shall, as soon as practicable
in the month in which such Distribution Date occurs, mail to each Holder of
such Class of Certificates as of the date of mailing a notice to the effect
that:
(i) the Trustee expects 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 Corporate Trust
Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after such
Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
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non-tendering Holder or Holders. If any Certificates as to which notice has
been given pursuant to this Section 4.01(e) 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
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(e). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-III Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(f) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to
such Certificateholders.
SECTION 4.02. Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer.
(a) On each Distribution Date, based upon (where applicable) the
information set forth in the report relating to such Distribution Date prepared
by the Master Servicer and delivered to the Trustee pursuant to Section 4.02(b)
hereof, and only to the extent (where applicable) such information is provided
to the Trustee by the Master Servicer, the Trustee shall forward to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the REMIC III
Regular Certificates and to the Rating Agencies a statement (a "Distribution
Date Statement"), substantially in the form attached hereto as Exhibit F, and
setting forth:
(i) the amount of the distribution, if any, on such Distribution Date
to the Holders of each Class of REMIC III Regular Certificates in reduction
of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution Date
to the Holders of each Class of REMIC III Regular Certificates allocable to
Distributable Certificate Interest
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and the amount of the distribution, if any, on such Distribution Date
to the Holders of each Class of REMIC III Regular Certificates allocable to
Prepayment Premiums;
(iii) the Available Distribution Amount for such Distribution Date;
(iv) the aggregate amount of P&I Advances made in respect of the
immediately preceding Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Distribution Date;
(vii) as of the close of business on the last day of the most recently
ended calendar month, the number, aggregate unpaid principal balance and
specific identification (by loan number) of Mortgage Loans (A) delinquent
30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, and
(D) as to which foreclosure proceedings have been commenced;
(viii) the most recent Appraised Value, the property type and the
address of any REO Property included in the Trust Fund as of the end of the
Collection Period for such Distribution Date and the unpaid principal
balance and Assumed Monthly Payment of the related REO Loan;
(ix) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC III Regular Certificates for
such Distribution Date;
(x) the aggregate amount of Distributable Certificate Interest payable
in respect of each Class of REMIC III Regular Certificates on such
Distribution Date, including, without limitation, any Distributable
Certificate Interest remaining unpaid from prior Distribution Dates;
(xi) any unpaid Distributable Certificate Interest in respect of each
Class of REMIC III Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xii) the Pass-Through Rate for each Class of REMIC III Regular
Certificates for such Distribution Date;
(xiii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components of such amount;
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(xiv) the aggregate of all Realized Losses incurred during the related
Collection Period and, aggregated by type, all Additional Trust Fund
Expenses incurred during the related Collection Period;
(xv) the Class Principal Balance or Class Notional Amount, as the case
may be, of each Class of REMIC III Regular Certificates outstanding
immediately before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized Losses
and Additional Trust Fund Expenses on such Distribution Date;
(xvi) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated following such Distribution Date;
(xvii) the Certificate Factor for each Class of REMIC III Regular
Certificates immediately following such Distribution Date;
(xviii) the aggregate amount of Servicing Fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period;
(xix) a brief description of any material waiver, modification or
amendment of any Mortgage Loan entered into by the Master Servicer or
Special Servicer pursuant to Section 3.20 during the related Collection
Period;
(xx) any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date
(or, in the case of the initial Distribution Date, since the Closing Date);
and
(xxi) such additional information, if any, as is contemplated on
Exhibit F hereto.
In the case of information furnished pursuant to clauses (i) and (ii)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause
(xvii) above), financial information reported by the Trustee to the
Certificateholders pursuant to this Section 4.02 shall be expressed as a dollar
amount rounded to the nearest whole cent. Absent actual knowledge of an error
therein, the Trustee shall have no obligation to recompute, recalculate or
verify any information provided to it by the Master Servicer or Special
Servicer. The calculations by the Trustee contemplated by this Section 4.02
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
In addition, the Trustee shall so deliver or cause to be delivered to
such Certificateholders and Certificate Owners and to the Rating Agencies, at
the same time that the Distribution Date Statement is delivered thereto, each
(i) Delinquent Loan Status Report, (ii) REO Status Report, (iii) Historical
Loan Modification Report, (iv) Special Servicer Loan Status Report,
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(v) Historical Loss Report, (vi) Operating Statement Analysis, (vii)
Comparative Financial Status Report, (viii) Watchlist and (ix) CSSA Report
(such reports described in the immediately preceding clauses (i) - (ix),
collectively with the Distribution Date Statement, the "Certificateholder
Reports") that has been received or prepared by the Trustee since the prior
Distribution Date (or, in the case of the initial Distribution Date, since the
Closing Date). Delivery of such reports shall be either in a written format, or
by other means mutually agreed to by the Trustee and any such Certificateholder
or Certificate Owner, and, in the case of the Rating Agencies (upon request and
to the extent reasonably possible), through an electronic medium. The form of
any Certificateholder Report may change over time.
On each Distribution Date, the Trustee shall also deliver or cause to
be delivered to such Certificateholders and Certificate Owners and to the
Rating Agencies, a report (based on information received from the Master
Servicer and Special Servicer) containing, as and to the extent received from
the Master Servicer and Special Servicer, information regarding the Mortgage
Pool as of the close of business on the related Determination Date, which
report shall contain substantially the categories of information regarding the
Mortgage Loans set forth in Annex A to the Prospectus Supplement (calculated,
where applicable, on the basis of the most recent relevant information provided
by the Mortgagors to the Master Servicer or the Special Servicer and by the
Master Servicer or the Special Servicer, as the case may be, to the Trustee)
and such information shall be presented in a loan-by-loan and tabular format
substantially similar to the formats utilized in Annex A to the Prospectus
Supplement (provided that no information will be provided as to any repair and
replacement or other cash reserve and the only financial information to be
reported on an ongoing basis will be the actual expenses, actual revenues and
actual Net Operating Income for the respective Mortgaged Properties and a Debt
Service Coverage Ratio calculated on the basis thereof). To the extent
reasonably possible, delivery of such report to any particular Rating Agency
shall be, upon request, through an electronic medium.
On each Distribution Date, the Trustee shall forward or make available
electronically to the Sponsor, to the Master Servicer, to the Special Servicer,
to the Holders of the Residual Certificates and, in the case of reports
regarding a Class of Book-Entry Certificates, to: (i) The Trepp Group (at 477
Madison Avenue, 15th Floor, New York, New York 10022, or such other address as
The Trepp Group may hereafter designate), (ii) Intex Solutions, Inc. (at 35
Highland Circle, Needham, Massachusetts 02194, or such other address as Intex
Solutions, Inc. may hereafter designate), (iii) Charter Research Corporation
(at 262 Washington Street, Boston, Massachusetts 02108, or such other address
as Charter Research Corporation may hereafter designate) or any other party
that the Depository may designate, a copy of the reports forwarded to the
Holders of the REMIC III Regular Certificates on such Distribution Date and a
statement setting forth the amounts, if any, actually distributed with respect
to each Class of Residual Certificates on such Distribution Date.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC III Regular Certificate a statement
containing the information as to the applicable Class set forth in
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clauses (i) and (ii) above of the description of Distribution Date Statement,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder, together with such other information as
the Trustee determines to be necessary to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of
the Code as from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to the
Holders of the Class R-I, Class R-II and Class R-III Certificates the Form 1066
and shall furnish their respective Schedules Q thereto at the times required by
the Code or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
R-I, Class R-II and Class R-III Certificates may reasonably request.
A Certificateholder or Certificate Owner may obtain each
Certificateholder Report via facsimile through the Trustee's Street Fax system
by dialing (617) 664-5600 and requesting the report code associated with
Mortgage Capital Funding, Inc., Series 1998-MC2, or such other mechanism as the
Trustee may have in place from time to time. At the direction of the Sponsor,
the Trustee shall make available any or all of the Certificateholder Reports
and may make available certain other information concerning the Mortgage Loans
and the Certificates to Certificateholders and Certificate Owners through the
Trustee's website (initially at corporatetrust.statestreet.com on the
internet). Account numbers on the Trustee's Street Fax System and passwords for
the Trustee's website may be obtained by calling (617) 664-5600. Additionally,
the Trustee shall make available to the Master Servicer, the Special Servicer,
the Certificateholders, Certificate Owners identified to the Trustee in writing
in accordance with Section 5.06(b), the Sponsor Citibank, N.A., J.P. Morgan
Securities Inc., each Rating Agency and, at the direction of the Sponsor,
Bloomberg Financial Markets, L.P. ("Bloomberg") (and may in its discretion and
upon receipt of prior written consent of the Sponsor publish on the internet)
by means of electronic access to a datafile in the form of the CSSA Reports,
with the Delinquent Loan Status Report, REO Status Report, Historical Loan
Modification Report, Special Servicer Loan Status Report, Historical Loss
Report and the Operating Statement Analysis attached (provided such reports
have been delivered to the Trustee pursuant to Section 4.02(b) in an electronic
format acceptable to the Trustee) via the Trustee's Trade Winds electronic
bulletin board (accessible by dialing (617) 664-5443). The Trustee may disclaim
responsibility for any information therein for which it is not the original
source.
(b) At or before 11:00 a.m. (New York City time) on the third Business
Day prior to the related Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee and the Special Servicer, in writing
and on a computer-readable medium, in form reasonably acceptable to the
Trustee, including, without limitation, on a loan-by-loan basis, the following
reports: (1) a Delinquent Loan Status Report, (2) an REO Status Report, (3) an
Historical Loan Modification Report, (4) an Historical Loss Report, (5) a
Comparative Financial Status Report, (6) the CSSA Reports, (7) a Watchlist, (8)
the Special Servicer Loan Status Report most recently received by the Master
Servicer and (9) a single report setting forth (but only to the extent not
covered by any of the
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other reports in clauses (1) through (8) of this paragraph) the information
specified in clauses (i) through (vii) below (the amounts and allocations of
payments, collections, fees and expenses with respect to Specially Serviced
Mortgage Loans and REO Properties to be based upon the report to be delivered
by the Special Servicer to the Master Servicer on the second Business Day after
such Determination Date, in the form required by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the Collection
Account to the Distribution Account on the related Master Servicer
Remittance Date that is allocable to principal on or in respect of the
Mortgage Loans and any REO Loans, separately identifying the aggregate
amount of any Principal Prepayments included therein, and (if different)
the Principal Distribution Amount for the immediately succeeding
Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Collection Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in respect
of the Mortgage Loans and any REO Loans and (B) Prepayment Premiums;
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made pursuant to
Section 4.03 of this Agreement that were made in respect of the immediately
preceding Distribution Date;
(iv) the amount of the Master Servicing Fees, Special Servicing Fees,
Workout Fees and Liquidation Fees with respect to the Mortgage Pool for the
Collection Period ending on such Determination Date, in each case payable
to the Master Servicer, the Special Servicer and any Sub-Servicers retained
by each;
(v) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vi) the aggregate amount of the Additional Trust Fund Expenses
(broken down by type) withdrawn from the Collection Account during the
Collection Period ending on such Determination Date; and
(vii) such other information on a Mortgage Loan-by-Mortgage Loan or
REO Property-by-REO Property basis as the Trustee or the Sponsor shall
reasonably request in writing (including, without limitation, information
with respect to any modifications of any Mortgage Loan, any Mortgage Loans
in default or foreclosure, the operation and disposition of REO Property
and the assumption of any Mortgage Loan).
On the date on which the reports described above are delivered to the
Trustee, the Master Servicer shall also deliver or cause to be delivered to the
Trustee and the Rating Agencies a report, in writing and in a computer-readable
medium, in form reasonably acceptable to the Trustee, containing the
information with respect to the Mortgage Pool necessary for the Trustee to
prepare
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with respect to the Mortgage Pool the additional schedules and tables required
to be made available by the Trustee pursuant to Section 4.02(a) in
substantially the same formats set forth in Annex A to the Prospectus
Supplement, in each case reflecting the changes in the Mortgage Pool during the
related Collection Period.
Not later than the first day of the calendar month following each
Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Collection Account as of
the close of business on such Master Servicer Remittance Date, stating that all
distributions required by this Agreement to be made by the Master Servicer have
been made (or, in the case of any required distribution that has not been made
by the Master Servicer, specifying the nature and status thereof) and showing,
for the period from the preceding Master Servicer Remittance Date (or, in the
case of the first Master Servicer Remittance Date, from the CutOff Date) to
such Master Servicer Remittance Date, the aggregate of deposits into and
withdrawals from the Collection Account for each category of deposit specified
in Section 3.04(a) and each category of withdrawal specified in Section
3.05(a). The Master Servicer shall also deliver to the Trustee, upon reasonable
request of the Trustee, any and all additional information relating to the
Mortgage Loans (which information shall be based upon reports delivered to the
Master Servicer by the Special Servicer with respect to Specially Serviced
Mortgage Loans and REO Properties).
Within 130 days following the end of each calendar quarter, commencing
with the calendar quarter ended September 30, 1998, the Master Servicer shall
deliver to the Trustee, with respect to each Mortgaged Property and REO
Property, a report (an "Operating Statement Analysis") substantially in the
form of Exhibit G-6 containing revenue, expense and net operating income
information normalized using the methodology described therein as of the end of
such calendar quarter, together with all operating statements and rent rolls in
its possession that relate to such Mortgaged Property or REO Property, as the
case may be, and that have not previously been delivered to the Trustee;
provided that (i) the requirement that the Master Servicer deliver an Operating
Statement Analysis with respect to any Specially Serviced Mortgage Loan or REO
Property in the time period provided above is subject to the Master Servicer
having received directly from the Special Servicer or through a Sub-Servicer
the related operating statements and rent rolls from the related Mortgagor or
otherwise within 120 days following the end of such calendar quarter and (ii)
if the related operating statements and rent rolls are not received within 120
days following the end of such calendar quarter, then the subject Operating
Statement Analysis shall be delivered by the Master Servicer to the Trustee
within 10 days after the date the Master Servicer has received the related
operating statements and rent rolls.
The Master Servicer, on each Determination Date, shall forward (for
delivery on such Determination Date) to the Special Servicer all information
collected by the Master Servicer which the Special Servicer is required to
include in the Special Servicer Loan Status Report. Further, the Master
Servicer shall cooperate with the Special Servicer and provide the Special
Servicer with the information in the possession of the Master Servicer
reasonably requested by the Special Servicer, in writing, to the extent
required to allow the Special Servicer to perform its obligations under this
Agreement with respect to those Mortgage Loans serviced by the Special
Servicer.
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The Master Servicer shall use its reasonable efforts to notify the
Rating Agencies in a timely manner of any change in the identity of either of
the two largest tenants of any retail Mortgaged Property and any casualty at or
condemnation proceeding with respect to any Mortgaged Property, subject to its
becoming aware of such change or event.
To the extent the statements, reports and information (or portions
thereof) to be delivered by the Master Servicer under this Section 4.02(b) are
derived from underlying information to be delivered to the Master Servicer by
the Special Servicer, the Master Servicer shall not be liable for any failure
to deliver such statement, report or information (or portion thereof) on the
prescribed dates, to the extent such failure is caused by the Special
Servicer's failure to deliver such underlying information in a timely manner.
Absent actual knowledge to the contrary, the Master Servicer may conclusively
rely on any such information forwarded to it by the Special Servicer and shall
have no obligation to verify the same.
(c) On the earlier of (i) the second Business Day after each
Determination Date and (ii) the fourth Business Day preceding the related
Distribution Date, the Special Servicer shall forward to the Master Servicer
(A) the Special Servicer Loan Status Report and (B) all information the Master
Servicer will be required to include in the other reports that the Master
Servicer is obligated to deliver to the Trustee pursuant to Section 4.02(b), to
the extent such information relates to any Specially Serviced Mortgage Loan or
any REO Property. The Special Servicer shall also deliver to the Master
Servicer and the Trustee, upon the reasonable written request of either of
them, any and all additional information in the possession of the Special
Servicer relating to the Specially Serviced Mortgage Loans and the REO
Properties.
The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to
the extent required to allow the Master Servicer to perform its obligations
under this Agreement with respect to the Specially Serviced Mortgage Loans and
REO Properties. Additional information regarding the Specially Serviced
Mortgage Loans, including, without limitation, any financial or occupancy
information (including lease summaries) provided to the Special Servicer by the
Mortgagors or otherwise obtained, shall be delivered to the Master Servicer,
within ten days of receipt.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each Master
Servicer Remittance Date the Master Servicer shall, subject to Section 3.04(c),
either (i) deposit into the Distribution Account from its own funds an amount
equal to the aggregate amount of P&I Advances, if any, to be made in respect of
the related Distribution Date, (ii) apply amounts held in the Collection
Account for future distribution to Certificateholders in subsequent months in
discharge of any such obligation to make P&I Advances, or (iii) make P&I
Advances in the form of any combination of (i) and (ii) aggregating the total
amount of P&I Advances to be made; provided that if Late Collections of any of
the delinquent principal and/or interest in respect of which it is to make P&I
Advances on
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any Master Servicer Remittance Date are then on deposit in the Collection
Account, the Master Servicer shall use such Late Collections (net of any Master
Servicing Fees and Workout Fees payable therefrom) to make such P&I Advances.
Any amounts held in the Collection Account for future distribution and so used
to make P&I Advances (other than the Late Collections of the delinquent
principal and/or interest contemplated by the proviso to the preceding
sentence) shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Collection Account on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal
and/or interest in respect of which such P&I Advances were made). If, as of
1:00 p.m., New York City time, on any Master Servicer Remittance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee (i) the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance or (ii) the requisite
notice contemplated by Section 3.04(c)), then the Trustee shall provide notice
of such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (301) 468-3142 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (301) 816-2300 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event
before 3:00 p.m., New York City time, on such Master Servicer Remittance Date.
If, after such notice, the Trustee does not receive the full amount of such P&I
Advances by 9:00 a.m. (New York City time) on the related Distribution Date,
then (i) unless the Trustee determines that such Advance would be a
Nonrecoverable P&I Advance if made, the Trustee shall make the portion of such
P&I Advances that was required to be, but was not, made by the Master Servicer
on such Master Servicer Remittance Date and (ii) such failure shall constitute
an Event of Default on the part of the Master Servicer.
(b) The aggregate amount of P&I Advances to be made in respect of the
Mortgage Loans (including, without limitation, Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Loans for any
Distribution Date shall equal, subject to subsection (c) below, the aggregate
of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly
Payments, in each case net of related Master Servicing Fees and Workout Fees
payable hereunder, that (i) were due or deemed due, as the case may be, in
respect thereof on their respective Due Dates during the related Collection
Period and (ii) were not paid by or on behalf of the related Mortgagors or
otherwise collected as of the close of business on the last day of the related
Collection Period; provided that, if an Appraisal Reduction Amount exists with
respect to any Required Appraisal Loan, then, in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Required Appraisal Loan for the related Distribution Date shall be reduced
(it being herein acknowledged that there shall be no reduction in the principal
portion of such P&I Advance) to equal the product of (i) the amount of the
interest portion of such P&I Advance for such Required Appraisal Loan for such
Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, if any,
and the denominator of which is equal to the Stated Principal Balance of such
Required Appraisal Loan immediately prior to such Distribution Date.
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(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, Nonrecoverable P&I
Advances shall be reimbursable pursuant to Section 3.05(a) out of general
collections on the Mortgage Pool on deposit in the Collection Account. The
determination by the Master Servicer or, if applicable, the Trustee, that it
has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered promptly (and, in any event, in the case of a
proposed P&I Advance by the Master Servicer, no less than two Business Days
prior to the related Master Servicer Remittance Date) to the Trustee (or, if
applicable, retained thereby), the Sponsor and the Rating Agencies, setting
forth the basis for such determination, together with (if such determination is
prior to the liquidation of the related Mortgage Loan or REO Property) a copy
of an Appraisal of the related Mortgaged Property or REO Property, as the case
may be, which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information that the Master
Servicer or the Special Servicer may have obtained and that supports such
determination. The Trustee shall deliver such Officer's Certificate as soon as
practicable after its determination that such P&I Advance would be
nonrecoverable. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust. The Trustee shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer with respect
to a particular P&I Advance, and the Master Servicer shall be entitled to rely
on any determination of nonrecoverability that may have been made by the
Special Servicer with respect to a particular P&I Advance.
(d) As and to the extent permitted by Section 3.05(a), the Master
Servicer and the Trustee shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (out of its own funds) for so long as such P&I Advance
is outstanding (or, in the case of Advance Interest payable to the Master
Servicer, if earlier, until the Late Collection of the delinquent principal
and/or interest in respect of which such P&I Advance was made has been received
by the Master Servicer or any of its Sub-Servicers), and such interest will be
paid: first, out of any Default Charges collected on or in respect of the
related Mortgage Loan; and second, at any time coinciding with or following the
reimbursement of such P&I Advance, out of general collections on the Mortgage
Loans and any REO Properties on deposit in the Collection Account. As and to
the extent provided by Section 3.05(a), the Master Servicer shall reimburse
itself or the Trustee, as appropriate, for any P&I Advance made thereby as soon
as practicable after funds available for such purpose are deposited in the
Collection Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection had been received as of the related date on which such P&I Advance
was made.
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SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses to the Sequential Pay Certificates.
On each Distribution Date, following the distributions to be made to
the Certificateholders on such date pursuant to Section 4.01(a), the Trustee
shall determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Sequential Pay Certificates, exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class L, Class K, Class J,
Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates
shall be reduced sequentially, in that order, in each case, until such excess
or the related Class Principal Balance is reduced to zero (whichever occurs
first). If, after the foregoing reductions, the amount described in clause (i)
of the second preceding sentence still exceeds the amount described in clause
(ii) of the second preceding sentence, then the respective Class Principal
Balances of the Class A-1 and Class A-2 Certificates shall be reduced, pro rata
in accordance with the relative sizes of the then-outstanding Class Principal
Balances of such Classes of Certificates, until such excess or each such Class
Principal Balance is reduced to zero (whichever occurs first). Such reductions
in the Class Principal Balances of the respective Classes of the Sequential Pay
Certificates shall be deemed to be allocations of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Deemed Distributions on, and Allocations of Realized
Losses and Additional Trust Fund Expenses to, the REMIC I
Regular Interests and REMIC II Regular Interests.
(a) All distributions of Distributable Certificate Interest made in
respect of the Class X Certificates on each Distribution Date pursuant to
Section 4.01(a), shall be deemed to have first been distributed from REMIC II
to REMIC III in respect of all the REMIC II Regular Interests up to an amount
equal to, and pro rata in accordance with, the Class X Portion of the
Uncertificated Distributable Interest for each such REMIC II Regular Interest
for such Distribution Date and, to the extent not previously deemed made
pursuant to this sentence, for all prior Distribution Dates, if any. In
addition, all distributions of Distributable Certificate Interest,
distributions of principal and reimbursements of previously allocated Realized
Losses and Additional Trust Fund Expenses made in respect of each Class of
Sequential Pay Certificates on each Distribution Date pursuant to Section
4.01(a) shall be deemed to have first been distributed from REMIC II to REMIC
III in respect of the Corresponding REMIC II Regular Interest for such Class of
Sequential Pay Certificates. In each such case, if such distribution on any
such Class of Certificates was a distribution of interest, of principal or in
reimbursement of any previously allocated Realized Losses and Additional Trust
Fund Expenses in respect of any such Class of Certificates, then the
corresponding distribution deemed to be made on a REMIC II Regular Interest
pursuant to either of the preceding two sentences shall be deemed to also be a
distribution of interest, of principal or in reimbursement of any previously
allocated Realized Losses and Additional Trust Fund Expenses, as the case may
be, in respect of such REMIC II Regular Interest.
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(b) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC III Regular Certificates on each Distribution Date
pursuant to Section 4.01(a) shall be deemed to have first been distributed from
REMIC II to REMIC III in respect of the respective REMIC II Regular Interests,
pro rata based upon the amount of principal deemed distributed in respect of
each such REMIC II Regular Interest for such Distribution Date pursuant to
Section 4.05(a) above.
(c) The actual distributions made by the Trustee on each Distribution
Date in respect of the REMIC III Certificates pursuant to Section 4.01(a),
shall be deemed to have been so made from the amounts deemed distributed in
respect of the REMIC II Regular Interests on such Distribution Date pursuant to
this Section 4.05. Notwithstanding the deemed distributions on the REMIC II
Regular Interests described in this Section 4.05, actual distributions of funds
from the Distribution Account shall be made only in accordance with Section
4.01.
(d) Each Realized Loss and Additional Trust Fund Expense, if any,
allocated to any Class of Sequential Pay Certificates on any Distribution Date
shall be deemed to have first been allocated to the Corresponding REMIC II
Regular Interest for such Class of Sequential Pay Certificates, with a
corresponding reduction in the Uncertificated Principal Balance of such REMIC
II Regular Interest.
(e) On each Distribution Date, the Available Distribution Amount for
such date shall be deemed to have first been distributed from REMIC I to REMIC
II in respect of the REMIC I Regular Interests, in each case to the extent of
the remaining portion of such funds, for the following purposes and in the
following order of priority:
(i) as deemed distributions of interest in respect of the REMIC I
Regular Interests, in an amount equal to, and pro rata in accordance with,
all Uncertificated Distributable Interest in respect of each such REMIC I
Regular Interest for such Distribution Date and, to the extent not
previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal in respect of the REMIC I
Regular Interests, in an amount equal to, and pro rata in accordance with,
as to each such REMIC I Regular Interest, the excess, if any, of the
Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date, over the Stated
Principal Balance of the related Mortgage Loan (or successor REO Loan) that
will be outstanding immediately following such Distribution Date; and
(iii) as deemed distributions in respect of the REMIC I Regular
Interests, in an amount equal to, pro rata in accordance with, and in
reimbursement of, any Realized Losses and Additional Trust Fund Expenses
(with compounded interest at the related REMIC I Remittance Rate),
previously allocated to each such REMIC I Regular Interest.
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(f) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC III Regular Certificates on each Distribution Date
pursuant to Section 4.01(a) shall be deemed to have first been distributed from
REMIC I to REMIC II in respect of the REMIC I Regular Interest corresponding to
the prepaid Mortgage Loan or REO Loan, as the case may be, in respect of which
such Prepayment Premium was received.
(g) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section
4.05(e), the Uncertificated Principal Balance of each REMIC I Regular Interest
(after taking account of such deemed distributions) shall, if and to the extent
necessary, be reduced to equal the Stated Principal Balance of the related
Mortgage Loan and/or REO Loan, as the case may be, that will be outstanding
immediately following such Distribution Date. All such reductions in the
Uncertificated Principal Balances of the respective REMIC I Regular Interests
shall be deemed to constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1, A-2, A-3, A-4 and A-5; provided that 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.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the
Registered Certificates and the Class F Certificates shall initially be held
and transferred through the book-entry facilities of the Depository. The
Non-Registered Certificates will be issuable in denominations corresponding to
initial Certificate Principal Balances as of the Closing Date of not less than
$100,000 and in any whole dollar denomination in excess thereof; and the
Registered Certificates will be issuable in denominations corresponding to
initial Certificate Principal Balances or Certificate Notional Amounts, as the
case may be, as of the Closing Date of not less than $10,000 (or, with respect
to the Class X Certificates, $1,000,000) and in any whole dollar denomination
in excess thereof. Each Class of Residual Certificates will be issuable only in
denominations representing not less than a 10% Percentage Interest in such
Class.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar 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;
provided that the Certificates issued on the Closing Date shall, in any event,
be dated the Closing Date.
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SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. For so long as the Trustee acts as Certificate Registrar, its
Corporate Trust Office shall constitute the office of the Certificate Registrar
maintained for such purposes. The Trustee may appoint, by a written instrument
delivered to the Sponsor, the Master Servicer, the Special Servicer and the
REMIC Administrator, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the Trustee shall not be relieved of any of its duties
or responsibilities hereunder as Certificate Registrar by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its predecessor's
duties as Certificate Registrar. The Sponsor, the Master Servicer, the Special
Servicer and the REMIC Administrator shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and
to rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. Upon request, the Trustee
shall promptly inform, or cause the Certificate Registrar to inform, the Master
Servicer or the Special Servicer, as applicable, of the identity of all
Certificateholders of the Controlling Class.
If three or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt
of such application, afford such applicants access during normal business hours
to the most recent list of Certificateholders held by the Trustee. If the
Trustee is no longer the Certificate Registrar and such a list is as of a date
more than 90 days prior to the date of receipt of such applicants' request, the
Trustee shall promptly request from the Certificate Registrar a current list as
provided above, and shall afford such applicants access to such list promptly
upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(b) No transfer of any Non-Registered Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. In the event a transfer of any Non-Registered
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Certificate (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Sponsor or
any Affiliate of the Sponsor and other than a NonRegistered Certificate which
constitutes a Book-Entry Certificate) is to be made without registration under
the Securities Act, the Certificate Registrar shall refuse to register such
transfer unless it receives the following: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1 hereto and a certificate from such Certificateholder's
prospective transferee substantially in the form attached either as Exhibit B-2
or Exhibit B-3 hereto; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act, together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. If a transfer of any interest in any Non-Registered Certificate that
constitutes a Book-Entry Certificate (such as a Class F Certificate) is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of any interest in
such Non-Registered Certificate by the Sponsor or any of its Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either: (i) a certificate from such Certificate Owner's prospective
transferee substantially in the form attached as Exhibit B-4 hereto or as
Exhibit B-5 hereto; or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Sponsor, the
Mortgage Loan Seller, the Additional Warranting Party, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator or the Certificate
Registrar in their respective capacities as such). None of the Sponsor, the
Trustee or the Certificate Registrar is obligated to register or qualify any
Class of Non-Registered Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate or interest
therein without registration or qualification. Any Holder or Certificate Owner
of a Non-Registered Certificate desiring to effect such a transfer shall, and
does hereby agree to, indemnify the Sponsor, the Trustee, the REMIC
Administrator and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
(c) No transfer of any Non-Registered Certificate or any interest
therein shall be made under any circumstances (i) to any employee benefit plan
or other retirement arrangement, including individual retirement accounts and
annuities, Keogh plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, that is subject to
ERISA or the Code (each, a "Plan"), or (ii) to any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of or as trustee of a Plan, or with "plan assets" within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R.
ss.2510.3-101, unless: (x) in the case of any Non-Registered Certificate or
interest therein that is being acquired with "plan assets", the prospective
Transferee provides the Certificate Registrar (or, in the case of a
Non-Registered Certificate that constitutes a Book-Entry Certificate, the
Certificate Owner that desires to effect the transfer) with a certification to
the effect that the purchase, continued holding and transfer of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections
I and III of
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Prohibited Transaction Class Exemption ("PTCE") 95-60; or (y) in the case of
any Non-Registered Certificate that is held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel, obtained at the expense of such prospective
Transferee, which establish to the satisfaction of the Certificate Registrar
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code, will not result in the imposition of an excise tax
under Section 4975 of the Code and will not subject the Trustee, Master
Servicer or Special Servicer to any obligation in addition to those undertaken
in this Agreement. It is hereby acknowledged that the forms of certification
attached hereto as Exhibit D-1 (in the case of Definitive Certificates) and D-2
(in the case of Book-Entry Certificates) are acceptable certifications for
purposes of the preceding sentence. Each Person who acquires any Certificate
(including, without limitation, a Registered Certificate) or interest therein
shall (in all cases, in the case of a Registered Certificate, and only if such
Person shall not have delivered the Opinion of Counsel and/or one of the
certifications referred to in the two preceding sentences, in the case of a
Non-Registered Certificate) be deemed to have certified that: (i) it is neither
a Plan nor any Person who is directly or indirectly purchasing such Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, or (ii) alternatively, that the purchase, continued holding
and transfer of such Certificate or interest therein is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Prohibited Transaction Exemption ("PTE") 90-88 or PTE 90-23 or
Sections I and III of PTCE 95-60.
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably authorized the Trustee under clause (ii)(A) below to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and a
United States Person and shall promptly notify the Trustee and
the REMIC Administrator of any change or impending change in its
status as a Permitted Transferee or United States Person.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate (other than in
connection with the initial issuance of the Certificates or any
transfer of a Residual Certificate by the Sponsor), the
Certificate Registrar shall require delivery to it, and shall not
register the Transfer of any Residual Certificate until its
receipt of, an affidavit and agreement substantially in the form
attached hereto as Exhibit C-1 (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, representing and
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warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Certificate it will
endeavor to remain a Permitted Transferee, that it is a United
States Person and that it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not both a Permitted Transferee and a United States
Person, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the Sponsor
and its Affiliates, each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall agree (1) to
require a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its Ownership
Interest in such Residual Certificate and (2) not to transfer its
Ownership Interest in such Residual Certificate unless it
provides to the Certificate Registrar a certificate substantially
in the form attached hereto as Exhibit C-2 stating that, among
other things, it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee and a United States
Person.
(E) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate, by purchasing an Ownership Interest in
such Certificate, agrees to give the Trustee and the REMIC
Administrator written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is
holding an Ownership Interest in a Residual Certificate on behalf
of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this
Section 5.02(d) shall be restored, to the extent permitted by
law, to all rights as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None
of the
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Trustee, the Master Servicer, the Special Servicer, the
REMIC Administrator or the Certificate Registrar shall be under
any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this
Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.02(d) and to the extent that the retroactive
restoration of the rights of the Holder of such Residual
Certificate as described in clause (ii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have
the right, but not the obligation, to cause the transfer of such
Residual Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee
shall not be liable to any Person having an Ownership Interest in
a Residual Certificate as a result of its exercise of such
discretion. Such Permitted Transferee shall promptly endorse and
deliver such Residual Certificate in accordance with the
instructions of the Trustee. Such Permitted Transferee may be the
Trustee itself or any Affiliate of the Trustee.
(iii) The REMIC Administrator shall make available to the
Internal Revenue Service and those Persons specified by the REMIC
Provisions all information necessary to compute any tax imposed (A) as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is not a Permitted Transferee or a
United States Person, including the information described in Treasury
regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to
the "excess inclusions" of such Residual Certificate and (B) as a
result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest
in a Residual Certificate having as among its record holders at any
time any Person which is not a Permitted Transferee. The Person
holding such Ownership Interest shall be responsible for the
reasonable compensation of the REMIC Administrator for providing such
information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this subsection (iv) may be modified, added to or eliminated, provided
that there shall have been delivered to the Trustee and the REMIC
Administrator the following:
(A) written notification from each Rating Agency to the
effect that the modification of, addition to or elimination of
such provisions will not cause such Rating Agency to downgrade
its then-current rating of any Class of Certificates; and
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(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee and the REMIC Administrator, to the
effect that such modification of, addition to or elimination of
such provisions will not cause any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an
entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee. Such Opinion of Counsel shall not be at the expense
of the Trust, the Trustee or the REMIC Administrator.
(e) The Trust has not been registered as an investment company under
the Investment Company Act. Accordingly, no transfer of any Class F, Class G,
Class H, Class J, Class K or Class L Certificate shall be made to any Person
other than an Institutional Accredited Investor or a Qualified Institutional
Buyer, and no transfer of any Residual Certificate shall be made to any Person
other than a Qualified Institutional Buyer. If a transfer of any such
Certificate is to be made, then the Certificate Registrar (or, in the case of a
Non-Registered Certificate that constitutes a Book-Entry Certificate, the
transferor) shall require, in order to assure compliance with the foregoing,
that the prospective transferee of such Certificate certify in writing that the
prospective transferee is a Qualified Institutional Buyer or, alternatively,
except in the case of a Residual Certificate, an Institutional Accredited
Investor.
(f) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of
authorized denominations of the same Class of a like aggregate Percentage
Interest.
(g) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
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(i) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(j) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Sponsor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for
transfer and exchange shall be physically canceled by the Certificate
Registrar, and the Certificate Registrar shall hold or destroy such canceled
Certificates in accordance with its standard procedures.
(k) The Certificate Registrar shall be required to provide the Sponsor
and the REMIC Administrator with an updated copy of the Certificate Register on
or about January 1 of each year, commencing January 1, 1999, and shall be
required to provide the Sponsor, the Master Servicer, the Special Servicer or
the REMIC Administrator with an updated copy of the Certificate Register at
other times promptly upon written request therefor.
(l) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and
(ii) full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c), (d) and (e) as applicable, of this Section 5.02.
(m) 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 this Section 5.02 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 this Section 5.02 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 Certificate Owners
made in violation of applicable restrictions.
SECTION 5.03. Book-Entry Certificates.
(a) The Registered Certificates and the Class F Certificates shall, in
the case of each Class thereof, initially be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as provided
in subsection (c) below, transfer of such Certificates may not be registered by
the Certificate Registrar unless such transfer is to a successor
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Depository that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. Such Certificate Owners shall hold and
transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided in
subsection (c) below, shall not be entitled to fully registered, physical
Certificates ("Definitive Certificates") in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall
only transfer the Ownership Interests in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures. Neither the
Certificate Registrar nor the Trustee shall have any responsibility to monitor
or restrict the transfer of Ownership Interests in Certificates through the
book-entry facilities of the Depository.
(b) The Sponsor, the Mortgage Loan Seller, the Trustee, the Master
Servicer, the Special Servicer, the REMIC Administrator and the Certificate
Registrar may for all purposes, including the making of payments due on the
Book-Entry Certificates, deal with the Depository as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. The
rights of Certificate Owners with respect to the Book-Entry Certificates shall
be limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(c) If (i)(A) the Sponsor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Sponsor is unable to locate a qualified
successor, or (ii) the Sponsor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to any Class of the Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall
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be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may reasonably be required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Sponsor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar and any agents of
any of them may treat the person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any agent of
any of them shall be affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
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(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such
Person's interest in such Certificate and any intermediaries through which such
Person's Ownership Interest in such Book-Entry Certificate is held; provided,
however, that the Trustee shall not knowingly recognize such Person as a
Certificate Owner if such Person, to the knowledge of a Responsible Officer of
the Trustee, acquired its Ownership Interest in a Book-Entry Certificate in
violation of Section 5.02(b) and/or Section 5.02(c), or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee from the Depository, Depository
Participants, and/or indirect participating brokerage firms for which a
Depository Participant acts as agent, with respect to the identity of a
Certificate Owner. The Trustee shall exercise its reasonable discretion in
making any determination under this Section 5.06(b) and shall afford any Person
providing information with respect to its beneficial ownership of any
Certificates an opportunity to resolve any discrepancies between the
information provided and any other information available to the Trustee.
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ARTICLE VI
THE SPONSOR, THE MORTGAGE LOAN SELLER,
THE ADDITIONAL WARRANTING PARTY, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer and the REMIC Administrator
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Sponsor, the
Mortgage Loan Seller, the Additional Warranting Party, the Master Servicer, the
Special Servicer and the REMIC Administrator herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Sponsor, the
Mortgage Loan Seller, the Additional Warranting Party,
the Master Servicer, the Special Servicer or the REMIC
Administrator.
Subject to the following paragraph, the Sponsor, the Mortgage Loan
Seller, the Additional Warranting Party, the Master Servicer, the Special
Servicer and the REMIC Administrator each will keep in full effect its
existence, rights and franchises as a corporation or other business
organization under the laws of the jurisdiction of its organization, and each
will obtain and preserve its qualification to do business as a foreign
corporation or otherwise in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this
Agreement, the Certificates or any of the Mortgage Loans and to perform its
respective duties under this Agreement.
The Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer and the REMIC Administrator
each may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, as to the Master Servicer and the
Special Servicer, may be limited to all or substantially all of its assets
relating to the business of mortgage loan servicing) to any Person, in which
case any Person resulting from any merger or consolidation to which the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer or the REMIC Administrator shall be a party, or
any Person succeeding to the business of the Sponsor, the Mortgage Loan Seller,
the Additional Warranting Party, the Master Servicer, the Special Servicer or
the REMIC Administrator, shall be the successor of the Sponsor, the Mortgage
Loan Seller, the Additional Warranting Party, the Master Servicer, the Special
Servicer or the REMIC Administrator, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that no successor or surviving Person shall succeed to the rights of
the Master Servicer or the Special Servicer unless such succession will
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not result in any withdrawal, downgrade or qualification of the rating then
assigned by either Rating Agency to any Class of Certificates (as confirmed to
the Trustee in writing).
SECTION 6.03. Limitation on Liability of the Sponsor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others.
None of the Sponsor, the Master Servicer (or its general partner), the
Special Servicer (or its general partner), the REMIC Administrator or any
director, officer, employee or agent of any of the foregoing shall be under any
liability to the Trust or the Certificateholders for any action taken, or not
taken, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Sponsor, the
Master Servicer (or its general partner), the Special Servicer (or its general
partner), the REMIC Administrator or any such other Person against any breach
of a representation or warranty made herein, or against any expense or
liability specifically required to be borne thereby pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder, or by reason of negligent disregard of such obligations
and duties. The Sponsor, the Master Servicer (and its general partner), the
Special Servicer (and its general partner), the REMIC Administrator and any
director, officer, employee or agent of any of the foregoing may rely in good
faith on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. The Sponsor,
the Master Servicer (and its general partner), the Special Servicer (and its
general partner), the REMIC Administrator and any director, officer, employee
or agent of any of the foregoing shall be indemnified and held harmless by the
Trust against any loss, liability or reasonable expense incurred in connection
with any legal action relating to this Agreement, the Certificates or any asset
of the Trust, other than any such loss, liability or expense: (i) specifically
required to be borne by such Person pursuant to the terms hereof, including,
without limitation, Section 10.01(h); (ii) incidental to the performance of
obligations and duties hereunder, including, without limitation, in the case of
the Master Servicer or the Special Servicer, the prosecution of an enforcement
action in respect of any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall otherwise be reimbursable pursuant to
this Agreement); or (iii) which was incurred in connection with claims against
such party resulting from (A) any breach of a representation or warranty made
herein by such party, (B) willful misfeasance, bad faith or negligence in the
performance of obligations or duties hereunder by such party, or from negligent
disregard of such obligations or duties, or (C) any violation by such party of
any state or federal securities law. None of the Sponsor, the Master Servicer,
the Special Servicer or the REMIC Administrator 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, except in the case
of a legal action contemplated by Section 3.22, in its opinion does not involve
it in any ultimate expense or liability; provided, however, that the Sponsor,
the Master Servicer, the Special Servicer or the REMIC Administrator may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to the enforcement and/or protection of 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, and
the Sponsor, the Master Servicer, the Special Servicer
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and the REMIC Administrator each shall be entitled to the direct payment of
such expenses or to be reimbursed therefor from the Collection Account as
provided in Section 3.05(a).
SECTION 6.04. Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the receipt by the Trustee of written confirmation from each and
every Rating Agency to the effect that such resignation and appointment will
not result in the downgrade, qualification or withdrawal of any rating then
assigned by such Rating Agency to any Class of Certificates, or (ii) upon
determination that such obligations and duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it, the other activities
of the Master Servicer, Special Servicer or REMIC Administrator, as the case
may be, so causing such a conflict being of a type and nature carried on by the
Master Servicer, Special Servicer or REMIC Administrator, as the case may be,
at the date of this Agreement. Any such determination of the nature described
in clause (ii) of the preceding sentence permitting the resignation of the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, shall be evidenced by an Opinion of Counsel to such effect which shall
be rendered by Independent counsel, be addressed and delivered to the Trustee
and the Rating Agencies and be paid for by the resigning party. No such
resignation for either reason shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party hereunder. All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs or expenses of any party hereto
reimbursable out of the Trust Fund) in connection with any such resignation
(including, without limitation, any requisite transfer of servicing) shall be
paid for, as incurred, by the resigning party.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties,
covenants or obligations to be performed by it hereunder. If, pursuant to any
provision hereof, the duties of the Master Servicer, the Special Servicer or
the REMIC Administrator are transferred to a successor thereto, then, subject
to Section 3.11 and Section 3.22, the entire amount of compensation payable to
the Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, pursuant hereto and accrued after the date of transfer shall
thereafter be payable to such successor.
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SECTION 6.05. Rights of the Sponsor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator.
The Master Servicer, the Special Servicer and the REMIC Administrator
each shall afford the Sponsor and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained by the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, in respect
of its rights and obligations hereunder and access to such of its officers as
are responsible for such obligations. Upon reasonable request, the Master
Servicer, the Special Servicer and the REMIC Administrator each shall furnish
the Sponsor and the Trustee with its most recent financial statements and such
other information as it possesses, and which it is not prohibited by law or, to
the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise. The Sponsor may, but is not obligated to,
enforce the obligations of the Master Servicer, the Special Servicer and the
REMIC Administrator hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer,
the Special Servicer or the REMIC Administrator hereunder or, in connection
with a default thereby, exercise the rights of the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder; provided, however, that none of
the Master Servicer, the Special Servicer or the REMIC Administrator shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Sponsor or its designee. The Sponsor shall not have any responsibility or
liability for any action or failure to act by the Master Servicer, the Special
Servicer or the REMIC Administrator and is not obligated to supervise the
performance of the Master Servicer, the Special Servicer or the REMIC
Administrator under this Agreement or otherwise.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer to deposit into the Collection
Account any amount required to be so deposited under this Agreement which
continues unremedied for two Business Days following the date on which such
deposit was first required to be made, or any failure by the Master
Servicer to deposit into, or to remit to the Trustee for deposit into, the
Distribution Account on any Master Servicer Remittance Date, the full
amount of any Master Servicer Remittance Amount required to be so deposited
or remitted under this Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or to remit
to the Master Servicer for deposit into, the Collection Account or the REO
Account any amount required to be so deposited or remitted under this
Agreement which continues unremedied for two Business Days following the
date on which such deposit or remittance was first required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which failure
to make such Servicing Advance continues unremedied for a period of three
Business Days following the date on which notice shall have been received
by the Master Servicer from the Trustee as provided in Section 3.11(e); or
(v) any failure by the Special Servicer to timely make (or timely
direct the Master Servicer to make) any Servicing Advance required to be
made by it or the Master Servicer at its direction pursuant to this
Agreement, which failure to make such Servicing Advance continues
unremedied for a period of three Business Days following the date on which
notice shall have been received by the Special Servicer from the Trustee as
provided in Section 3.11(e); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of 30 days after
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the date on which written notice of such failure, requiring the same
to be remedied, shall have been received by the Master Servicer or the
Special Servicer, as the case may be, from any other party hereto, or by
the Master Servicer or the Special Servicer, as the case may be, with a
copy to each other party hereto, from the Holders of Certificates entitled
to at least 25% of the Voting Rights; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure 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 REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement which materially and adversely affects
the interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled to
at least 25% of the Voting Rights; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
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assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance of
the foregoing; or
(xii) the Trustee shall have received written notice from either
Rating Agency that the continuation of the Master Servicer or the Special
Servicer in such capacity would result (or the continuation of the Master
Servicer or the Special Servicer in such capacity has resulted) in a
downgrade, qualification or withdrawal of any rating then assigned by such
Rating Agency to any Class of Certificates.
Each Event of Default listed above as items (vi) through (xii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer,
Special Servicer and REMIC Administrator, or in any two or more of the
foregoing capacities, an Event of Default in one capacity (other than an event
described in clause (xii)) will constitute an Event of Default in each such
capacity.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Sponsor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights or if the relevant
Event of Default is the one described in clause (xii) of subsection (a) above,
the Trustee shall, terminate, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Mortgage Loans and the proceeds thereof. From
and after the receipt by the Defaulting Party of such written notice, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a Holder of any Certificate) or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under this Section, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of and at the
expense of the Defaulting Party, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agree that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten Business
Days subsequent to its receipt of the notice of termination) provide the
Trustee with all documents and records reasonably requested thereby to enable
the Trustee to assume the Master Servicer's or Special Servicer's, as the case
may be, functions hereunder, and shall cooperate with the Trustee in effecting
the termination of the Master Servicer's or Special Servicer's, as the case may
be, responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee for administration by it of
all cash amounts which shall at the time be or should have been credited by the
Master Servicer to the Collection Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Collection Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received
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with respect to the Mortgage Loans and any REO Properties (provided, however,
that the Master Servicer and the Special Servicer each shall, if terminated
pursuant to this Section 7.01(b), continue to be obligated for or entitled to
receive all amounts accrued or owing by or to it under this Agreement on or
prior to the date of such termination, whether in respect of Advances or
otherwise, and it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any
such termination). All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs and expenses of any party hereto
reimbursable out of the Trust Fund) in connection with the termination of the
Master Servicer or Special Servicer, as applicable, under this Section 7.01(b)
(including, without limitation, the requisite transfer of servicing) shall be
paid for, as incurred, by the Defaulting Party.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long
as the Event of Default shall not have been remedied, the Sponsor or the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of the Voting Rights, the Trustee (or, if the Trustee
is also the REMIC Administrator, the Sponsor) shall, terminate, by notice in
writing to the REMIC Administrator (with a copy to each of the other parties
hereto), all of the rights and obligations of the REMIC Administrator under
this Agreement. From and after the receipt by the REMIC Administrator of such
written notice (or if the Trustee is also the REMIC Administrator, from and
after such time as another successor appointed as contemplated by Section 7.02
accepts such appointment), all authority and power of the REMIC Administrator
under this Agreement shall pass to and be vested in the Trustee (or such other
successor) pursuant to and under this Section, and, without limitation, the
Trustee (or such other successor) is hereby authorized and empowered to execute
and deliver, on behalf of and at the expense of the REMIC Administrator, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination. The REMIC Administrator agrees
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of the termination) to provide the Trustee (or, if the
Trustee is also the REMIC Administrator, such other successor appointed as
contemplated by Section 7.02) with all documents and records requested thereby
to enable the Trustee (or such other successor) to assume the REMIC
Administrator's functions hereunder, and to cooperate with the Trustee (or such
other successor) in effecting the termination of the REMIC Administrator's
responsibilities and rights hereunder (provided, however, that the REMIC
Administrator shall continue to be obligated for or entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, and it and its directors, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination).
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or the
REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
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Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to
Section 3.06 hereunder nor shall the Trustee nor any other successor be
required to purchase any Mortgage Loan hereunder. As compensation therefor, the
Trustee shall be entitled to all fees and other compensation which the
resigning or terminated party would have been entitled to for future services
rendered if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act, or is not approved by each and every
Rating Agency as an acceptable master servicer or special servicer, as the case
may be, of commercial mortgage loans, or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, or if the REMIC Administrator is the resigning or terminated party and
the Trustee had been acting in such capacity, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution as the successor to the Master Servicer, the Special Servicer or
the REMIC Administrator, as the case may be, hereunder in the assumption of all
or any part of the responsibilities, duties or liabilities of the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
hereunder; provided that such appointment does not result in the downgrade,
qualification or withdrawal of any rating then assigned by either Rating Agency
to any Class of Certificates (as evidenced by written confirmation thereof from
each Rating Agency). No appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder shall be effective until
the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer, the Special Servicer or the REMIC Administrator hereunder, the
Trustee shall act in such capacity as hereinabove provided. In connection with
any such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on or in
respect of the Mortgage Loans or otherwise as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the resigning or terminated party hereunder. The Sponsor, the
Trustee, such successor and each other party hereto shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Any costs and expenses associated with the transfer of the
foregoing functions under this Agreement (other than the set-up costs of the
successor) shall be borne by the predecessor Master Servicer, Special Servicer
or REMIC Administrator, as applicable, and, if not paid by such predecessor
Master Servicer, Special Servicer or REMIC Administrator within thirty days of
its receipt of an invoice therefor, shall be an expense of the Trust; provided
that such predecessor Master Servicer, Special Servicer or REMIC Administrator
shall reimburse the Trust for any such expense so incurred by the Trust; and
provided, further, that the
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Trustee shall decide whether and to what extent it is in the best interest of
the Certificateholders to pursue any remedy against any party obligated to make
such reimbursement.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special Servicer
or the REMIC Administrator pursuant to Section 6.04, any termination of the
Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee has actual
knowledge, or would be deemed in accordance with Section 8.02(vii) to have
notice of the occurrence of such an event, the Trustee shall transmit by mail
to the other non-defaulting parties hereto and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders entitled to at least 66-2/3% (or, in the case of an Event
of Default described in clauses (i) through (v) and (xii) of Section 7.01(a),
80%) of the Voting Rights allocated to each of the Classes of Certificates
affected by any Event of Default hereunder may waive such Event of Default,
except that prior to any waiver of an Event of Default arising from a failure
to make P&I Advances, the Trustee shall be reimbursed all amounts which it has
advanced. Upon any such waiver of an Event of Default, such Event of Default
shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other Event
of Default or impair any right consequent thereon except to the extent
expressly so waived. Notwithstanding any other provisions of this Agreement,
for purposes of waiving any Event of Default pursuant to this Section 7.04,
Certificates registered in the name of the Sponsor or any Affiliate of the
Sponsor (provided that neither the Sponsor nor any Affiliate thereof is the
party in respect of which such Event of Default exists) shall be entitled to
the same Voting Rights with respect to the matters described above as they
would if any other Person held such Certificates.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default 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 and 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 filings of proofs of claim and debt in
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connection therewith). 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
Event of Default.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement; provided that it
is herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and
use the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement.
If any such instrument is found not to so conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Sponsor, the Master Servicer, the Special Servicer
or the REMIC Administrator and accepted by the Trustee in good faith, pursuant
to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Agreement;
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(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may be
specifically provided for hereunder) of the Voting Rights relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall not
be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default hereunder which has not been
cured, to exercise such of the rights and powers vested in it by this
Agreement and to use the same degree of care and skill in their exercise as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs;
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(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action;
(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-in-fact, provided that the use of any such agent or
attorney-in-fact shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and
omissions of any such agent or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator
(unless the Trustee is acting as Master Servicer, Special Servicer or REMIC
Administrator, as the case may be) or for any act or omission of the
Sponsor or the Mortgage Loan Seller.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
representations and warranties of, and the other statements attributed to, the
Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Sponsor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 2.07) or of any
Certificate (other than as to the signature of the Trustee set forth thereon)
or of any Mortgage Loan
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or related document. The Trustee shall not be accountable for the use or
application by the Sponsor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Sponsor or the Mortgage Loan Seller in respect of the assignment of the
Mortgage Loans to the Trust, or any funds deposited in or withdrawn from the
Collection Account or any other account by or on behalf of the Sponsor, the
Master Servicer, the Special Servicer or the REMIC Administrator. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Sponsor, the Master Servicer, the Special Servicer or the
REMIC Administrator and accepted by the Trustee in good faith, pursuant to this
Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any agent of
the Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
SECTION 8.05. Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee and any of its directors, officers, employees or
agents shall be entitled to be indemnified and held harmless by the Trust (to
the extent of amounts on deposit in the Collection Account and the Distribution
Account from time to time) against any loss, liability or expense (including,
without limitation, costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement) arising out
of, or incurred in connection with, the exercise and performance of any of the
powers and duties of the Trustee hereunder; provided that none of the Trustee
or any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
in the normal course of the Trustee's performing its routine duties in
accordance with any of the provisions hereof, (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of negligent disregard of such obligations or duties,
or as may arise from a breach of any representation, warranty or covenant of
the Trustee made herein. The provisions of this Section 8.05(b) shall survive
any resignation or removal of the Trustee and appointment of a successor
trustee.
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SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times meet the requirements of
Section 26(a)(1) of the Investment Company Act and be a corporation, a trust
company, a bank or a banking association: (i) organized and doing business
under the laws of the United States of America or any State thereof or the
District of Columbia; (ii) authorized under such laws to exercise trust powers;
(iii) having a combined capital and surplus of at least $50,000,000; (iv)
subject to supervision or examination by federal or state authority; and (v)
whose long-term senior unsecured debt is rated not less than "Aa2" by Moody's
and "AA" by Fitch (or, in the case of each Rating Agency, such lower ratings as
would not, as confirmed in writing by such Rating Agency, result in a
qualification, downgrade or withdrawal of any of the then-current ratings
assigned by such Rating Agency to the Certificates). If such corporation, trust
company, bank or banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section 8.06, the
combined capital and surplus of such corporation, trust company, bank or
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee 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. The corporation, trust company, bank or
banking association serving as Trustee may have normal banking and trust
relationships with the Sponsor, the Mortgage Loan Seller, the Additional
Warranting Party, the Master Servicer, the Special Servicer, the REMIC
Administrator and their respective Affiliates; provided that none of (i) the
Depositor or any Person involved in the organization or operation of the
Depositor, (ii) the Mortgage Loan Seller, (iii) the Additional Warranting Party
or (iv) any Affiliate of any of them, may be the Trustee hereunder.
SECTION 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Sponsor, the
Mortgage Loan Seller, the Additional Warranting Party, the Master Servicer, the
Special Servicer, the REMIC Administrator and all the Certificateholders. Upon
receiving such notice of resignation, the Sponsor shall promptly appoint a
successor trustee acceptable to the Master Servicer by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Mortgage Loan Seller, the Additional Warranting Party, the Master Servicer, the
Special Servicer, the REMIC Administrator and the Certificateholders by the
Sponsor. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Sponsor or the Master 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
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officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Sponsor may remove the Trustee and appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the Trustee so removed and to the successor trustee. A
copy of such instrument shall be delivered to the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
REMIC Administrator and the Certificateholders by the Sponsor.
(c) The Holders of Certificates entitled to at least 33-1/3% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed; provided
that the Master Servicer, the Sponsor and the remaining Certificateholders
shall have been notified; and provided further that other Holders of the
Certificates entitled to a greater percentage of the Voting Rights shall not
have objected to such removal in writing to the Master Servicer and the Sponsor
within 30 days of their receipt of notice thereof. A copy of such instrument
shall be delivered to the Sponsor, the Mortgage Loan Seller, the Additional
Warranting Party, the Special Servicer, the REMIC Administrator and the
remaining Certificateholders by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee
as provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
REMIC Administrator and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files and related
documents and statements at the time held on its behalf by a Custodian, which
Custodian shall become the agent of the successor trustee), and the Sponsor,
the Mortgage Loan Seller, the Additional Warranting Party, the Master Servicer,
the Special Servicer, the REMIC Administrator and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required to more fully and certainly vest and confirm in the successor
trustee all such rights, powers, duties and obligations, and to enable the
successor trustee to perform its obligations hereunder. If such predecessor
trustee was removed as Trustee under this Agreement without cause, the cost of
any such execution, delivery or action shall be at the expense of the Trust.
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(b) No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, the Master Servicer shall mail notice of the succession
of such trustee hereunder to the Sponsor and the Certificateholders. If the
Master Servicer 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 Master Servicer.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that the Trustee shall
continue to be eligible under the provisions of Section 8.06. The successor to
the Trustee shall promptly notify in writing each of the other parties hereto,
the Certificateholders and the Rating Agencies of any such merger, conversion,
consolidation or succession to business.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund,
and to vest in such Person or Persons, in such capacity, such title to the
Trust Fund, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in case an Event of Default in respect
of the Master Servicer shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any
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particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint one
or more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee; provided that if the Custodian is an Affiliate of the Trustee such
consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File, shall maintain errors and omissions insurance and a
fidelity bond meeting the requirements of Fannie Mae for mortgage loan document
custodians acting on its behalf and shall not be the Sponsor, the Mortgage Loan
Seller, the Additional Warranting Party or any Affiliate of any of them. Each
Custodian shall be subject to the same obligations and standard of care as
would be imposed on the Trustee hereunder in connection with the retention of
Mortgage Files directly by the Trustee. The appointment of one or more
Custodians shall not relieve the Trustee from any of
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its duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the Sponsor,
the Master Servicer, the Special Servicer and the Rating Agencies, and to the
OTS, the FDIC, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to the
Mortgage Files and any other documentation regarding the Mortgage Loans and the
Trust Fund, that is within its control which may be required by this Agreement
or by applicable law. Such access shall be afforded without charge but only
upon reasonable prior written request and during normal business hours at the
offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Sponsor shall provide to the
Trustee 10 copies of any private placement memorandum or other disclosure
document used by the Sponsor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Sponsor promptly shall inform the Trustee of such
event and shall deliver to the Trustee 10 copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Sponsor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items:
(i) in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) this Agreement and the Sub-Servicing Agreements, and any amendments
hereto or thereto, (B) all statements and reports required to be delivered to
Holders of the relevant Class of Certificates pursuant to Section 4.02(a) since
the Closing Date, (C) all reports delivered to the Trustee since the Closing
Date pursuant to Section 4.02(b) and Section 4.02(c), (D) all Officer's
Certificates delivered to the Trustee since the Closing Date pursuant to
Section 3.13, (E) all accountants' reports delivered to the Trustee since the
Closing Date pursuant to Section 3.14, (F) the most recent inspection report
prepared by the Master Servicer or Special Servicer, as the case may be, and
delivered to the Trustee in respect of each Mortgaged Property pursuant to
Section 3.12(a), (G) all Mortgagor financial statements and Mortgaged Property
operating statements and rent rolls delivered to the Trustee by the Master
Servicer or the Special Servicer since the Closing Date pursuant to Section
3.12(b), (H) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a defaulted Mortgage Loan as to
which the environmental testing contemplated by Section 3.09(c) revealed that
either of the conditions set forth in clauses (i) and (ii) of the first
sentence thereof was not satisfied or that any remedial, corrective or other
further action contemplated in such clauses is required (but only for so
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long as such Mortgaged Property or the related Mortgage Loan is part of the
Trust Fund), and (I) all documents constituting the Mortgage Files, including,
without limitation, any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Master Servicer or the Special
Servicer and delivered to the Trustee pursuant to Section 3.20 (but, in each
case, only for so long as the related Mortgage Loan is part of the Trust Fund).
Copies of any and all of the foregoing items are to be available from the
Trustee upon request; however, the Trustee shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Sponsor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person,
in form reasonably satisfactory to the Trustee, generally to the effect that
such Person is a beneficial holder of Certificates and will keep such
information confidential and (ii) in the case of any prospective purchaser of a
Certificate or, in the case of a Book-Entry Certificate, of a beneficial
ownership interest therein, a written confirmation executed by the requesting
Person, in form reasonably satisfactory to the Trustee, generally to the effect
that such Person is a prospective purchaser of a Certificate or a beneficial
ownership interest therein, is requesting the information for use in evaluating
a possible investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates,
shall be deemed to have agreed to keep such information confidential, except to
the extent that the Sponsor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
SECTION 8.13. Filings with the Securities and Exchange Commission.
The Trustee shall, at the expense of the Sponsor, prepare for filing,
execute and properly file with the Commission, any and all reports, statements
and information, including, without limitation, Distribution Date Statements,
Delinquent Loan Status Reports, REO Status Reports, Historical Loan
Modification Reports, Special Servicer Loan Status Reports, Historical Loss
Reports and Operating Statement Analyses (exclusive of the actual operating and
financial statements), respecting the Trust Fund and/or the Certificates
required by applicable law, specifically provided herein or otherwise
reasonably requested by the Sponsor to be filed on behalf of the Trust under
the Exchange Act; provided that, in the case of any such items not prepared by
the Trustee, such items shall have been received by the Trustee in the format
required for electronic filing via the EDGAR system; and provided, further,
that any such items that are required to be delivered by the Master Servicer or
the Special Servicer to the Trustee shall be so delivered in a format suitable
for conversion to the format required for electronic filing via the EDGAR
system (in addition to any other required format). The Trustee shall have no
responsibility to file any such items that have not been received in such
EDGAR-compatible format nor shall it have any responsibility to convert any
items to such format. The Sponsor shall promptly file, and exercise its
reasonable best efforts to obtain a favorable response to, no-action requests
to, or requests for other appropriate exemptive relief from, the
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Commission regarding the usual and customary exemption from certain reporting
requirements granted to issuers of securities similar to the Certificates, and
shall file a Form 15 in respect of the Trust during the first January following
the Closing Date that it is permitted to do so under the Exchange Act and the
regulations promulgated thereunder.
SECTION 8.14. Massachusetts Filings.
The Trustee shall make any filings required under Massachusetts
General Laws, Chapter 182, Sections 2 and 12.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations and
responsibilities under this Agreement of the Sponsor, the Mortgage Loan Seller,
the Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator (other than the obligations of the Trustee
to provide for and make payments to Certificateholders as hereafter set forth)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Master Servicer or by the Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) of all Mortgage Loans and each REO Property remaining in
REMIC I at a price (to be calculated by the Master Servicer and the Trustee as
of the close of business on the third Business Day preceding the date upon
which notice of any such purchase is furnished to Certificateholders pursuant
to the third paragraph of this Section 9.01 and as if the purchase was to occur
on such Business Day) equal to (A) the aggregate Purchase Price of all the
Mortgage Loans included in REMIC I, plus (B) the appraised value of each REO
Property, if any, included in REMIC I (such appraisal to be conducted by a
Qualified Appraiser selected by the Master Servicer and approved by the
Trustee), minus (C) if such purchase is being made by the Master Servicer, the
aggregate amount of unreimbursed Advances made by the Master Servicer, together
with any Advance Interest payable to the Master Servicer in respect of such
Advances and any unpaid Master Servicing Fees remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the Master Servicer in
connection with such purchase), and (ii) the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador of
the United States to the Court of St. James, living on the date hereof.
Any Majority Certificateholder of the Controlling Class (other than
the Sponsor or the Mortgage Loan Seller) and the Master Servicer, in that order
of priority, shall have the right to purchase all of the Mortgage Loans and
each REO Property remaining in REMIC I as contemplated by clause (i) of the
preceding paragraph by giving written notice to the other parties hereto no
later than 60 days prior to the anticipated date of purchase; provided,
however, that the Master Servicer and any Majority Certificateholder of the
Controlling Class (other than the Sponsor or the Mortgage Loan Seller) each may
so elect to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I only if the aggregate Stated Principal Balance of the Mortgage Pool
at the time of such election is less than 1.0% of the Initial Pool Balance. In
the event that the Master Servicer or any Majority Certificateholder of the
Controlling Class (other than the Sponsor or the Mortgage Loan Seller) elects
to purchase all of the Mortgage Loans and each REO Property
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remaining in REMIC I in accordance with the preceding sentence, the Master
Servicer or such Majority Certificateholder, as applicable, shall deposit in
the Distribution Account not later than the Master Servicer Remittance Date
relating to the Distribution Date on which the final distribution on the
Certificates is to occur, an amount in immediately available funds equal to the
above-described purchase price (exclusive of any portion thereof payable to any
Person other than the Certificateholders pursuant to Section 3.05(a), which
portion shall be deposited in the Collection Account). In addition, the Master
Servicer shall transfer all amounts required to be transferred to the
Distribution Account on such Master Servicer Remittance Date from the
Collection Account pursuant to the first paragraph of Section 3.04(b). Upon
confirmation that such final deposits have been made, the Trustee shall release
or cause to be released to the purchaser or its designee, the Mortgage Files
for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the purchaser, as shall
be necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in REMIC I.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Sponsor or
the Mortgage Loan Seller) of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates or (b) otherwise during the month of such final distribution on or
before the 5th day of such month, in each case specifying (i) the Distribution
Date upon which the Trust will terminate and final payment on the Certificates
will be made, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the offices of the Certificate Registrar or such other location therein
designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount for such date that is allocable to payments on the relevant
Class in accordance with Section 4.01(a).
Any funds not distributed to any Holder or Holders of Certificates of
any Class on the Final Distribution Date because of the failure of such Holder
or Holders to tender their Certificates shall, on such date, be set aside and
held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice 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 non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender
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of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the
non-tendering Certificateholders shall be paid out of such funds. No interest
shall accrue or be payable to any former Holder on any amount held in trust
hereunder. If by the second anniversary of the delivery of such second notice,
all of the Certificates shall not have been surrendered for cancellation, then
(subject to applicable escheat laws) the Class R-III Certificateholders shall
be entitled to all unclaimed funds and other assets which remain subject
thereto.
SECTION 9.02. Additional Termination Requirements.
(a) In the event the Master Servicer or any Majority Certificateholder
of the Controlling Class (other than the Sponsor or the Mortgage Loan Seller)
purchases all of the Mortgage Loans and each REO Property remaining in REMIC I
as provided in Section 9.01, the Trust (and, accordingly, REMIC I, REMIC II and
REMIC III) shall be terminated in accordance with the following additional
requirements, unless the Master Servicer or such Majority Certificateholder, as
applicable, obtains at its own expense and delivers to the Trustee and the
REMIC Administrator an Opinion of Counsel, addressed to the Trustee and the
REMIC Administrator, to the effect that the failure of the Trust to comply with
the requirements of this Section 9.02 will not result in the imposition of
taxes on "prohibited transactions" of REMIC I, REMIC II or REMIC III as defined
in Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each
of REMIC I, REMIC II and REMIC III pursuant to Treasury regulation Section
1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the time
of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of REMIC I to the Master Servicer or the Majority
Certificateholder of the Controlling Class, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of Residual
Certificates all cash on hand (other than cash retained to meet claims),
and each of REMIC I, REMIC II and REMIC III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the REMIC Administrator to adopt a plan of complete
liquidation of each of REMIC I, REMIC II and REMIC III in accordance with the
terms and conditions of this Agreement, which authorization shall be binding
upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and, if necessary, under
Applicable State Law. Each such election will be made on Form 1066 or other
appropriate federal or state Tax Returns for the taxable year ending on the
last day of the calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-I Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC I.
The REMIC II Regular Interests are hereby designated as the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), in REMIC II, and the
Class R-II Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
The Class X, Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K and Class L Certificates are hereby
designated as the "regular interests" (within the meaning of Section 860G(a)(1)
of the Code), and the Class R-III Certificates are hereby designated as the
sole class of "residual interests" (within the meaning of Section 860G(a)(2) of
the Code), in REMIC III. None of the REMIC Administrator, the Master Servicer,
the Special Servicer or the Trustee shall, to the extent it is within the
control of such Person, create or permit the creation of any other "interests"
in any of REMIC I, REMIC II or REMIC III (within the meaning of Treasury
regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "Startup Day" of each
of REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of
the Code.
(d) The REMIC Administrator is hereby designated as agent for the Tax
Matters Person of each of REMIC I, REMIC II and REMIC III and shall: act on
behalf of the Trust in relation to any tax matter or controversy, represent the
Trust in any administrative or judicial proceeding relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of REMIC I, REMIC II or REMIC III, seek
private letter rulings from the IRS in accordance with Section 10.01(g), enter
into settlement agreements with any governmental taxing agency, extend any
statute of limitations relating to any tax item of REMIC I, REMIC II or REMIC
III, and otherwise act on behalf of each of REMIC I, REMIC II and REMIC III in
relation to any tax matter or controversy involving such REMIC. By their
acceptance thereof, the Holders of the Residual Certificates hereby agree to
irrevocably appoint the REMIC Administrator as their agent to perform all of
the duties of the Tax Matters Person for REMIC I, REMIC II and REMIC III.
Subject to Section 10.01(h), the legal expenses and costs of any action
described in this subsection (d) and any liability resulting therefrom shall be
expenses, costs and
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liabilities of the Trust, and the REMIC Administrator shall be entitled to be
reimbursed therefor out of any amounts on deposit in the Distribution Account
as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file, and the Trustee
shall sign, all of the Tax Returns in respect of each of REMIC I, REMIC II and
REMIC III. The expenses of preparing and filing such returns shall be borne by
the REMIC Administrator without any right of reimbursement therefor.
(f) The REMIC Administrator shall perform on behalf of each of REMIC
I, REMIC II and REMIC III all reporting and other tax compliance duties that
are the responsibility of each such REMIC under the Code, the REMIC Provisions
or other compliance guidance issued by the IRS or any other taxing authority
under Applicable State Law. Included among such duties, the REMIC Administrator
shall provide to: (i) any Transferor of a Residual Certificate, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is not both a Permitted
Transferee and a United States Person; (ii) the Certificateholders, such
information or reports as are required by the Code or the REMIC Provisions,
including, without limitation, reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required); and (iii) the IRS, the name, title, address and telephone number of
the Person who will serve as the representative of each of REMIC I, REMIC II
and REMIC III.
(g) The REMIC Administrator shall perform its duties more specifically
set forth hereunder in a manner consistent with maintaining the status of each
of REMIC I, REMIC II and REMIC III as a REMIC under the REMIC Provisions (and
each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
any of REMIC I, REMIC II or REMIC III to take) any action or fail to take (or
fail to cause to be taken) any action within the scope of its duties more
specifically set forth hereunder that, under the REMIC Provisions, if taken or
not taken, as the case may be, could result in an Adverse REMIC Event with
respect to any such REMIC, unless the REMIC Administrator has received an
Opinion of Counsel or an IRS private letter ruling to the effect that the
contemplated action will not result in an Adverse REMIC Event. None of the
other parties hereto shall take any action (whether or not authorized
hereunder) as to which the REMIC Administrator has advised it in writing that
it has received an Opinion of Counsel or an IRS private letter ruling to the
effect that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to REMIC I, REMIC II or REMIC
III, or causing REMIC I, REMIC II or REMIC III to take any action, that is not
expressly permitted under the terms of this Agreement, each of the other
parties hereto will consult with the REMIC Administrator, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur.
None of the parties hereto shall take any such action or cause REMIC I, REMIC
II or REMIC III to take any such action as to which the REMIC Administrator has
advised it in writing that an Adverse REMIC Event could occur. The REMIC
Administrator may consult with counsel or seek an IRS private letter ruling to
make such written advice, and the cost of same shall be borne: (i) if such
action that is not expressly permitted by this Agreement would be of a material
benefit to or otherwise in the best interests of the
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Certificateholders as a whole, by the Trust and shall be paid by the Trustee at
the direction of the REMIC Administrator out of amounts on deposit in the
Distribution Account; and (ii) otherwise by the party seeking to take the
action not permitted by this Agreement. Without limiting the respective duties
and obligations of the parties hereto, the parties hereto may act hereunder in
reliance on any IRS private letter ruling so obtained by the REMIC
Administrator.
(h) In the event that any tax is imposed on REMIC I, REMIC II or REMIC
III, including, without limitation, "prohibited transactions" taxes as defined
in Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of state or local tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the REMIC Administrator, if such tax arises out of or results from a breach by
the REMIC Administrator of any of its obligations under this Article X; (ii)
the Trustee, if such tax arises out of or results from a breach by the Trustee
of any of its obligations under Article IV, Article VIII or this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach
by the Master Servicer of any of its obligations under Article III or this
Article X; (iv) the Special Servicer, if such tax arises out of or results from
a breach by the Special Servicer of any of its obligations under Article III or
this Article X; or (v) the Trust in all other instances. Any tax permitted to
be incurred by the Special Servicer pursuant to Section 3.17(a) shall be
charged to and paid by the Trust. Any such amounts payable by the Trust in
respect of taxes shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I, REMIC II and REMIC III on a calendar
year and on an accrual basis.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to REMIC I, REMIC II or REMIC III unless it shall
have received an Opinion of Counsel (at the expense of the party seeking to
cause such contribution) to the effect that the inclusion of such assets in
such REMIC will not cause: (i) such REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding; or (ii) the imposition of any tax
on such REMIC under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the Special
Servicer or the Trustee shall consent to or, to the extent it is within the
control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller or the Additional Warranting Party
regarding the Mortgage Loans or as otherwise provided for in Section 2.03, (B)
the foreclosure, default or
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imminent default of a Mortgage Loan, including but not limited to, the sale or
other disposition of a Mortgaged Property acquired by deed-in-lieu of
foreclosure, (C) the bankruptcy of REMIC I, REMIC II or REMIC III, or (D) the
termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Collection Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust Fund
(other than a Mortgaged Property acquired through foreclosure, deed-in-lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in
the Collection Account or the REO Account); in any event unless it has received
an Opinion of Counsel (from and at the expense of the party seeking to cause
such sale, disposition, or acquisition) to the effect that such sale,
disposition, or acquisition will not cause: (x) REMIC I, REMIC II or REMIC III
to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on REMIC I, REMIC II or REMIC III
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I, REMIC II or REMIC III will
receive a fee or other compensation for services or, to the extent it is within
the control of such Person, permit REMIC I, REMIC II or REMIC III to receive
any income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code. At all times as may be required by the Code, the REMIC
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of REMIC I, REMIC II or REMIC III will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Sponsor, Master Servicer, Special Servicer and Trustee
to Cooperate with REMIC Administrator.
(a) The Sponsor shall provide or cause to be provided to the REMIC
Administrator, within ten (10) days after the Closing Date, all information or
data that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each furnish such reports, certifications and information, and access to such
books and records maintained thereby, as may relate to the Certificates or the
Trust Fund and as shall be reasonably requested by the REMIC Administrator in
order to enable it to perform its duties hereunder.
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SECTION 10.03. Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the same
Person, the Trustee covenants and agrees to pay to the REMIC Administrator from
time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
SECTION 10.04. Use of Agents.
The REMIC Administrator may execute any of its obligations and duties
hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be defective or may be inconsistent
with any other provision herein, (iii) to add any other provisions with respect
to matters or questions arising hereunder which shall not be inconsistent with
the provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or
clarified such that any such requirement may be relaxed or eliminated; (v) if
such amendment, as evidenced by an Opinion of Counsel delivered to the Trustee
and the REMIC Administrator, is reasonably necessary to comply with any
requirements imposed by the Code or any successor or amendatory statute or any
temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to REMIC I, REMIC II or REMIC III at least from the effective
date of such amendment, or would be necessary to avoid the occurrence of a
prohibited transaction or to reduce the incidence of any tax that would arise
from any actions taken with respect to the operation of REMIC I, REMIC II or
REMIC III; (vi) to modify, add to or eliminate any provisions of Section
5.02(d)(i), (ii) and (iii) as provided in Section 5.02(d)(iv); or (vii) for any
other purpose; provided that such amendment (other than any amendment for the
specific purposes described in clauses (v) and (vi) above) shall not, as
evidenced by an Opinion of Counsel obtained by or delivered to the Trustee,
adversely affect in any material respect the interests of any Certificateholder
without such Certificateholder's written consent; and provided further that
such amendment (other than any amendment for any of the specific purposes
described in clauses (i) through (vi) above) shall not result in a downgrade,
qualification or withdrawal of any rating then assigned to any Class of
Certificates by either Rating Agency (as evidenced by written confirmation to
such effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or delay the timing of, payments received or advanced on the Mortgage Loans and
any REO Properties which are required to be distributed on any Certificate
without the written consent of the Holder of such Certificate, (ii) adversely
affect in any material respect the interests of the Holders of any Class of
Certificates in a manner other than as described in clause (b)(i) without the
written consent of the Holders of all Certificates of such Class, or (iii)
modify the provisions of this Section 11.01 without the written consent of the
Holders of all Certificates then-outstanding. Notwithstanding any other
provision of this Agreement, for purposes
-206-
<PAGE>
of the giving or withholding of consents pursuant to this Section 11.01,
Certificates registered in the name of the Sponsor, the Mortgage Loan Seller,
the Additional Warranting Party, the Master Servicer, the Special Servicer or
any of their respective Affiliates shall be entitled to the same Voting Rights
with respect to matters described above as they would if any other Person held
such Certificates.
(c) Notwithstanding any contrary provision of this Agreement, neither
the Trustee nor the REMIC Administrator shall consent to any amendment to this
Agreement unless it shall first have obtained or been furnished with an Opinion
of Counsel to the effect that such amendment or the exercise of any power
granted to any party hereto in accordance with such amendment will not result
in the imposition of a tax on REMIC I, REMIC II or REMIC III pursuant to the
REMIC Provisions or cause REMIC I, REMIC II or REMIC III to fail to qualify as
a REMIC at any time that any Certificates are outstanding.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe; provided that such
consents shall be in writing.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
in furtherance of the rights and interests of Certificateholders, the cost of
any Opinion of Counsel required in connection therewith pursuant to Section
11.01(a) or (c) shall be payable out of the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
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<PAGE>
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any
Mortgage Loan, unless, with respect to any suit, action or proceeding upon or
under or with respect to this Agreement, such Holder previously shall have
given to the Trustee a written notice of default hereunder, and of the
continuance thereof, as hereinbefore provided, and (except in the case of a
default by the Trustee) the Holders of Certificates entitled to at least 25% of
the Voting Rights shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the 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 shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to
enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section 11.03(c), each
and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
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<PAGE>
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given when delivered to: (1) in the case of the Sponsor,
Mortgage Capital Funding, Inc., 399 Park Avenue, 3rd Floor, New York, New York
10043, Attention: Mortgage Finance, telecopy number: (212) 793-5602 (with
copies to Stephen E. Dietz, Esq., Associate General Counsel, Citibank, N.A.,
425 Park Avenue, New York, New York 10043, telecopy number: (212) 793-4401);
(2) in the case of the Mortgage Loan Seller, Citicorp Real Estate, Inc., 399
Park Avenue, New York, New York 10043 Attention: Richard L. Jarocki, Jr.,
telecopy number: (212) 793-5602; (3) in the case of the Additional Warranting
Party, Morgan Guaranty Trust Company of New York, 60 Wall Street, New York, New
York 10260 Attention: Lawrence J. Blume telecopy number (212) 648-5138; (4) in
the case of the Master Servicer and the Special Servicer, CRIIMI MAE Services
Limited Partnership, 11200 Rockville Pike, Rockville, Maryland 20852,
Attention: Brian Hanson, telecopy number (301) 468-3147 (with a copy to the
attention of David Iannarone, Esq. at such address); (5) in the case of the
Trustee and REMIC Administrator, State Street Bank and Trust Company, Two
International Place, 5th Floor, Boston, Massachusetts 02110, Attention:
Mortgage Capital Funding, Inc., Series 1998-MC2, telecopy number (617)
664-5167; and (6) in the case of the Rating Agencies, (A) Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention:
Commercial MBS Monitoring Department, telecopy number: (212) 553-0300; and (B)
Fitch IBCA, Inc., One State Street Plaza, New York, New York 10004, Attention:
Commercial Mortgage Surveillance, telecopy number: (212) 635-0295; or as to
each such Person such other address as may hereafter be furnished by such
Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
-209-
<PAGE>
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
Except as specifically contemplated by Sections 3.24, 6.03 and 8.05, no other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to the Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has not
been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan Seller
or the Additional Warranting Party, as applicable, pursuant to Section
2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of a
successor;
(ii) any change in the location of the Collection Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
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<PAGE>
(iv) any material casualty at or condemnation or eminent domain
proceeding in respect of a Mortgaged Property; and
(v) the vacating by an anchor tenant of a retail Mortgaged Property.
(c) Each of the Master Servicer and the Special Servicer, as the case
may be, shall furnish to each Rating Agency such information with respect to
the Mortgage Loans as the Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14, if any.
In addition, upon request, each of the Master Servicer and the Special Servicer
shall promptly furnish to each Rating Agency copies or summaries (in such
format as will be acceptable to the Rating Agency) of any of the written
reports (including, without limitation, reports regarding property inspections)
prepared, and any of the quarterly and annual operating statements, rent rolls
and financial statements collected, by it pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish to each Rating Agency on a
monthly basis copies of the statements to the Holders of the REMIC III Regular
Certificates required by the first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies by any of the Trustee, the
Master Servicer or the Special Servicer pursuant to this Section 11.09, shall
be so delivered or otherwise made available through an electronic medium.
-211-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
MORTGAGE CAPITAL FUNDING, INC.,
Sponsor
By: /s/ Richard L. Jarocki, Jr.
---------------------------
Name: Richard L. Jarocki, Jr.
Title: President
CITICORP REAL ESTATE, INC.,
Mortgage Loan Seller
By: /s/ Mark Horinbein
---------------------------
Name: Mark Horinbein
Title: Authorized Signatory
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK,
Additional Warranting Party
By: /s/ Lawrence Blume
---------------------------
Name: Lawrence Blume
Title: Vice President
CRIIMI MAE SERVICES LIMITED PARTNERSHIP,
Master Servicer and Special Servicer
By: CRIIMI MAE Services, Inc.
its general partner
By: /s/ David B. Iannarone
---------------------------
Name: David B. Iannarone
Title: Senior Vice President
General Counsel
STATE STREET BANK AND TRUST COMPANY,
Trustee and REMIC Administrator
By: /s/ William G. Swan
---------------------------
Name: William G. Swan
Title: Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29 day of June, 1998, before me, a notary public in and for
said State, personally appeared Richard L. Jarocki, Jr., known to me to be a
President of MORTGAGE CAPITAL FUNDING, INC., one of the entities that executed
the within instrument, and also known to me to be the person who executed it
on behalf of such entity, and acknowledged to me that such entity executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ David E. Philley
---------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29 day of June, 1998, before me, a notary public in and for
said State, personally appeared Mark Horinbein, known to me to be a
Authorized Signatory of CITICORP REAL ESTATE, INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ David E. Philley
---------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26 day of June, 1998, before me, a notary public in and for
said State, personally appeared Lawrence Blume, known to me to be a Vice
President of MORGAN GUARANTY TRUST COMPANY OF NEW YORK, one of the entities
that executed the within instrument, and also known to me to be the person
who executed it on behalf of such entity, and acknowledged to me that such
entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Bianca Russo
--------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF MARYLAND )
) ss.:
COUNTY OF MONTGOMERY )
On the 29 day of June, 1998, before me, a notary public in and for
said State, personally appeared David B. Iannarone, known to me to be a
Senior VP/General Counsel of CRIIMI MAE Services, Inc., the general partner of
CRIIMI MAE SERVICES LIMITED PARTNERSHIP, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Julia Briggs White
-----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29 day of June, 1998, before me, a notary public in and for
said State, personally appeared William G. Swan, known to me to be a Vice
President of STATE STREET BANK AND TRUST COMPANY, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ David E. Philley
---------------------------
Notary Public
[Notarial Seal]
<PAGE>
SCHEDULE I
Mortgage Loan Schedule
<PAGE>
<TABLE>
<CAPTION>
CONTROL
NUMBER LOAN NUMBER PROPERTY NAME PROPERTY ADDRESS
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<S> <C> <C> <C>
C001 6601056 375 Hudson Street 375 Hudson Street
C002 6601257 Wellpoint Office Complex 2155 Oxnard Street
C003 6201867 IBM Plaza Building 654 Munoz Rivera Avenue
C004 6600965 201 Broadway 201 Broadway
C005 6600030 1241 East Main Street 1241 East Main Street
- -----------------------------------------------------------------------------------------------------------------------------------
C006 6600911 Henderson Carriage Building 2067 Massaachusetts Avenue
J007 521 Brunswig Square Office Building 360 East Second Street
C008 6202723 Westgate Office Center 3400 Demetropolis Road
C009 6600691 Weir Canyon 160 Old Springs Road
C010 6201994 Old City Hall 1001 and 1000 E. Broad Steet
- -----------------------------------------------------------------------------------------------------------------------------------
C011 6202009 Cocoview - Coconut Grove 2977 McFarlane Road
C012 6202568 Paramount Office Center 1141 Montlimar Drive
C013 6600918 One Appleton Street One Appleton Street
C014 6600167 Wells Fargo Cypress Office Bldg. 12337 Jones Road
C015 6202785 309 & 311 Plus Park Blvd. 309 & 311 Plus Park Blvd
- -----------------------------------------------------------------------------------------------------------------------------------
C016 6600637 Grove Square Office Center 13601 80th Circle North
C017 6600183 Riverside Village Shopping Center 4541 Shirley Ave.
C018 6600206 Merchants Grove 2420-2422-2424-2426-2428-2430 N. Grandview
Boulevard
C019 6600190 BPI Lincolnia Centre 4810 Beauregard Street
C020 6110111 Aquia Commerce Center 2721 Jefferson Davis HWY
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C021 6600704 2900 South College Building 2900 South College Avenue
C022 6202756 Coronada Plaza 1085 and 1095 N. Main Street
C023 6600710 Harmony Medical Center 1330 Oakridge Drive
C025 6600991 Building 38 Charleston Navy Yard
C028 6600553 Everitt Plaza 3000 & 3030 South College
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C029 6600707 4700 McMurry Building 4700 McMurry Avenue
C030 6600706 Building One Oakridge 1100 Haxton Drive
C031 6600705 1609 Oakridge Building 1609 Oakridge Drive
C032 6600568 Ruben-Plaza Properties 3016 Maryland Avenue
C033 6601072 Minneapolis City Center 33 South 6th St. & 40 South 7th St.
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C034 6201909 Townside Retail & Office Center 2114-2220 Ivy Road
C035 6000159 Harbor Cove Building 310-312 Broadway
C036 6600916 Bushnell Plaza One Gold Street
C037 6600281 The Landing 530 Causeway Drive
C038 6600012 Brittany Springs 2504 Bordeaux Lane
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C039 6600711 Collingwood Apts 3400 Kimball Bridge Road
J040 604 Alton Woods Apartments 241 Loudon Road
C041 6600105 French Quarter Apts-Aurora 3227 S. Parker Road
C042 6202137 Fairwood Pond Apartments 14700 SE Petrovitsky Road
C043 6600456 Alpine Apartments 5210-5411 Mockingbird Dr.
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C044 6000145 Eagle Creek Apts 1128 S. Williams Street
C045 6000168 Commons at Hawthorne Village 1221 NE 51st Avenue
C046 6202786 Summerhill Plaza Apartments 650 W. Broadway
J047 573 Rolling Hills Apartments 891 Rolling Hills Lane
C048 6000150 Village Gardens Townhomes 120th & Ridgeview
- -----------------------------------------------------------------------------------------------------------------------------------
C049 6202563 Gillespie/Roland Apartments 805-809,901-913 So. First St, 56-58 Daniel St,
60 E.Chalmers
J050 603 Salisbury Green Apartments 201 Loudon Road
J051 571 Birchwood Pointe 1500 Wood Pointe Lane
J052 644 Randall Station Apartments and Townhomes 27 North Randall Avenue
C053 6600600 Ruben-Bexley Apartments 3018 Maryland Avenue
- -----------------------------------------------------------------------------------------------------------------------------------
C054 6600022 Martinbrook Apartments 1817-A Bond Circle, Polly Reed Rd
C056 6201545 Springville Heights/90 Richmond Hill Rd 90 Richmond Hill Road
J057 514 Windsor Park Apartments 1220 Sierra Drive NE
C058 6600037 Adams Place Apartments 750 Adams Place and 141 Manassas Street
C059 6600036 Atrium Apartments 1306 N. Lincoln Avenue
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C060 6600516 Springville Heights Condo/80 Richmond Hill Road 80 Richmond Hill Road
C062 6600075 Emerald Estates Apts 3300 Civic Center Drive
C063 6000220 Oak Run Apartments 37701-37776 Oak Run Circle
C064 6600383 Ridgebrook Apartments 1601South 24th Street
C065 6202353 Kendall Village Townhomes 1113 Kimbark Ave. ,2925-2927 W. Michigan Ave.,
301-319 S. & 220-222 N. Kenda
- -----------------------------------------------------------------------------------------------------------------------------------
C066 6202567 Carriage Lane, Carriage Way and Colorado Oaks Apts. 302 South Busey Avenue, 705 Colorado Avenue,
709 West Green
J067 574 Hunter Woods Apartments 772 South Saginaw Street
C068 6600598 Larkway Garden Apartments 1604 Monroe Ave SW
C069 6110157 Lake Chalet Apartments 2506 103rd Street E.
C070 6600455 Taiga Twins Apts 403 & 423 W. 22nd Avenue
- -----------------------------------------------------------------------------------------------------------------------------------
J071 572 Arbors of Lapeer 952 Dewey Street
C072 6600589 Wolhurst Point Apartments 7312 & 7322 South Bryant Street
C073 6000165 Northwoods Apartments 200 East 19th Avenue
C074 6600280 Riverview Apartments 1230 E Auer Street
C075 6600600 Ruben-Janet Circle Apartments 2936-2978 North Gould Road
- -----------------------------------------------------------------------------------------------------------------------------------
C076 6000175 Fiesta Trails Power Center I H 10 & DeZavala Rd.
C077 6600079 Aroostook Centre Mall US Route 1
J078 608 Venice Villages Shoppes 4105 Tamiami Trail
J079 562 Industry Marketplace Shopping Center 17259-17363 Gale Avenue
C080 6600562 K-Mart Super Store 3300 N. 27th Street
- -----------------------------------------------------------------------------------------------------------------------------------
J081 525 K-Mart Kahului Dairy Rd. at Hanna Highway
C082 6202163 K-Mart - Lancaster 1842-1890 Fruitville Pike
C083 6600592 Ruben-North High Center 5030-5086 North High Street
C084 6201963 Frenchtown Plaza 5943 Post Road
C086 6600684 Courtesy Town Center Hwy 70 & Nine Foot Rd
- -----------------------------------------------------------------------------------------------------------------------------------
C087 6000185 Park Place Shopping Center 3050 Clarksville Street
C088 6600605 Eastgrove Shopping Center 3949 Hoover Road
C089 6600557 Ruben-James & Livingston Center 1214-1220 South James Road
C090 6600613 Delaware Shopping Center 153-193 S. Sandusky Street
J091 619 Castle Ridge Shopping Center Route 10 and River Road
- -----------------------------------------------------------------------------------------------------------------------------------
C092 6600548 Ruben-Bethel Centre 1440-1530, 5207-5236 Bethel Road
J093 630 Oak Creek Plaza Shopping Center 8-120 Oak Creek Plaza
C094 6600083 Grove Plaza 2220-2240 E Plaza Blvd.
C095 6202673 Almeda Depot Shopping center 12344 Interstate 45
C096 6600096 Ingram Square Shopping Center 6531-6844 Ingram Road
- -----------------------------------------------------------------------------------------------------------------------------------
J097 629 Howell Ferry Shopping Center 3585 Peachtree Industrial Blvd
C098 6201732 1740 Utica Avenue 1740 Utica Avenue
C099 6201964 Parktown Plaza 301 N. Lewis Road
C101 6600698 Bethlehem Village Shoppes 3650 Nazareth Pike
C102 6600108 Summerton Plaza 300 Route 9
- -----------------------------------------------------------------------------------------------------------------------------------
J103 623 Washington Park Shopping Center 7663-7887 26 Mile Road
C104 6600560 Ruben-Beechcroft Center 1931-1977 East Dublin-Granville Rd.
C105 6600593 Ruben-Wyandotte Center 5091-5139 East Main Street
C106 6600718 White Rock Shopping Center 9005-9069 Garland Road
C107 6202584 99 Cents Only Store 5270 Sunset Blvd
- -----------------------------------------------------------------------------------------------------------------------------------
C108 6202463 Illuminations Plaza 618 NW 60th Street
C109 6600566 Ruben-Barnes & Noble/Kinko's 5160 East Main Street
C110 6202698 Taschner Shopping Center 500 West Southern Avenue
C111 6600594 Ruben-McNaughten Center 6085-6115 E. Main Street
C112 6202501 Magnolia Laurel Canyon Shopping Center 12115-12129 Magnolia Boulevard
- -----------------------------------------------------------------------------------------------------------------------------------
C113 6600686 CVS Drugstore - Baltimore 5200 York Road
C114 6600779 CVS-Manayunk 3720-80 Main Street
C115 6201809 Family Bargain Center 6711 Van Nuys Blvd
C116 6600595 Ruben-Village Center 1995-2019 East Dublin-Granville Road
C117 6202680 Almeda West Shopping Center 9940-9944 Kleckly Street
- -----------------------------------------------------------------------------------------------------------------------------------
C118 6600570 Ruben-West Broad Center 3631-3659 West Broad Street
C119 6000213 Blockbuster Building O'Connor Drive & FM 620
C120 6202705 Fiesta Square 2 1660-1720 W. Southern Avenue
C121 6202704 Goodyear Plaza 2180 N. Alma School Road
C122 6600347 Hampton Inn - Savannah 201 E. Bay Street
- -----------------------------------------------------------------------------------------------------------------------------------
C123 6600349 Mulberry Inn - Savannah 601 E. Bay Street
C125 6203080 Radisson Inn -Northpoint 10740 Westside Pkwy
C127 6553913 Durango Holiday Inn 800 Camino Del Rio
C128 6202751 Wingate Inn 1005 Kingswood Place
C129 6000228 Holiday Inn Express 4911 Oaklawn Boulevard
- -----------------------------------------------------------------------------------------------------------------------------------
C131 6202743 Hampton Inn-Gainesville 4225 SW 40th Boulevard
J132 496 Midway Hotel 1835 Rose Street
C133 6000227 Hampton Inn 5103 Plaza Drive
C135 6600203 Marsh Creek Country Club 88 Marshside Ct.
C136 6202118 Holiday Inn - Aiken, SC 155 Colony Parkway
- -----------------------------------------------------------------------------------------------------------------------------------
C138 6600940 Days Inn - Thomasville 895 Lake Road
J139 515 Tanners Lake Super 8 Motel 285 North Century Avenue
C140 6201571 Comfort Inn - Greer 611 West Wade Hampton Blvd
C141 6202088 Super 8 Motel 2100 North State Steet
C142 6600765 Sleep Inn 17013 Abercorn Street
- -----------------------------------------------------------------------------------------------------------------------------------
J143 549 Best Western Midway Hotel - Wausau 2901 Martin Avenue
J144 617 Standard Warehouse 922 Molly Pond Road
J145 516 8100 Camino Arroyo Building 8100 Camino Arroyo Road
C146 6600094 International Paper Box Machine Company-Nashua 90 NE Blvd.
C147 6600082 1891 Alton Parkway 1891 Alton Parkway
- -----------------------------------------------------------------------------------------------------------------------------------
J148 598 Park Heights 43350-43352 Business Park Drive
J149 634 River Road Industrial Park 399 River Road
C150 6600030 120 Hamilton Avenue 120 Hamilton Avenue
C151 6600352 Faulkenburg Centre 501 South Faulkenburg Road
C152 6000218 RT Commerce Park 709 & 717 Lingco Drive
- -----------------------------------------------------------------------------------------------------------------------------------
C153 6202760 23161 Antonio Parkway 23161 Antonio Parkway
C154 6600095 14 Mason 14 Mason
C155 6600094 International Paper Box Machine Co.-Milford 1300 U.S. 50 Hwy
C156 6202627 Cascades of Tucson 201 N. Jessica Ave.
C157 6600166 River Oaks Convalescent Center 300 North Street
- -----------------------------------------------------------------------------------------------------------------------------------
C158 6203006 Americare Convalescent Center 18211 Anglin Ave
J159 538 Sonoma Acres Convalescent Hospital 765 Donald Street
C160 6600098 Valley Ridge Mobile Home Park 8671 SW Loop 410
C161 6600168 Stonecroft Mobile Home Park 4900 Raytown Road
J162 504 Eisenhower Nursing & Conv. Hosp. 1470 North Fair Oaks Ave.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
REMAINING TERM
ZIP MORTGAGE ORIGINAL CUT-OFF TO MATURITY/ARD
CITY STATE CODE RATE BALANCE DATE BALANCE (MONTHS)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
New York City NY 10014 7.030 $ 183,000,000 $ 182,091,683.35 116
Los Angeles CA 91367 7.860 $ 51,200,000 $ 51,200,000.00 210
San Juan PR 00918 7.500 $ 23,500,000 $ 23,465,010.18 118
Cambridge MA 02139 7.170 $ 14,000,000 $ 13,991,692.13 119
Stamford CT 06902 7.600 $ 9,831,325 $ 9,684,338.03 175
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Cambridge MA 02140 7.130 $ 9,000,000 $ 8,994,592.46 119
Los Angeles CA 90012 8.090 $ 9,000,000 $ 8,933,383.45 113
Mobile AL 36609 7.560 $ 6,500,000 $ 6,496,598.71 119
Anaheim CA 92808 7.550 $ 6,100,000 $ 6,096,797.34 119
Richmond VA 23219 7.810 $ 4,100,000 $ 4,086,588.24 118
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Coconut Grove FL 33133 7.470 $ 4,000,000 $ 3,994,837.87 118
Mobile AL 36609 7.240 $ 2,950,000 $ 2,945,967.17 118
Boston MA 02116 7.230 $ 2,500,000 $ 2,498,544.07 119
Houston TX 77070 7.580 $ 2,485,000 $ 2,483,708.34 119
Nashville TN 37217 7.570 $ 2,160,000 $ 2,158,019.51 119
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Maple Grove MN 55369 7.260 $ 2,000,000 $ 1,996,111.43 117
Jacksonville FL 32210 7.540 $ 1,950,000 $ 1,947,527.84 118
Waukesha WI 53188 7.590 $ 1,600,000 $ 1,598,539.65 119
Alexandria VA 22312 7.780 $ 1,575,000 $ 1,574,235.47 119
Stafford VA 22555 7.280 $ 1,500,000 $ 1,481,346.56 176
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Fort Collins CO 80525 7.040 $ 1,445,000 $ 1,443,510.05 119
Orange CA 92687 7.600 $ 1,350,000 $ 1,348,314.55 118
Fort Collins CO 80526 7.040 $ 1,334,000 $ 1,332,624.50 119
Charleston Navy Yard MA 02129 7.180 $ 1,250,000 $ 1,249,260.53 119
Fort Collins CO 80525 7.040 $ 984,000 $ 982,985.39 119
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Fort Collins CO 80525 7.040 $ 900,000 $ 899,072.00 119
Fort Collins CO 80525 7.040 $ 652,000 $ 651,327.72 119
Fort Collins CO 80525 7.040 $ 630,000 $ 629,350.40 119
Columbus OH 43209 7.570 $ 525,000 $ 522,384.03 237
Minneapolis MN 55402 6.720 $ 108,000,000 $ 108,000,000.00 120
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Charlottesville VA 22903 7.040 $ 2,900,000 $ 2,894,022.85 117
Laguna Beach CA 92651 7.260 $ 2,250,000 $ 2,246,939.34 118
Hartford CT 06103 6.920 $ 1,650,000 $ 1,648,943.19 119
Wrightsville Beach NC 28480 7.340 $ 1,100,000 $ 1,098,937.84 119
Naperville IL 60540 7.180 $ 32,750,000 $ 32,592,221.88 114
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Alpharetta GA 30022 7.050 $ 18,900,000 $ 18,806,597.71 114
Concord NH 03301 6.910 $ 14,862,000 $ 14,824,584.68 117
Aurora CO 80014 6.720 $ 12,200,000 $ 12,175,441.37 118
Renton WA 98058 6.710 $ 12,000,000 $ 11,957,938.00 116
Anchorage AK 99507 6.810 $ 10,000,000 $ 9,976,376.07 118
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Westmont IL 60559 7.110 $ 10,000,000 $ 9,961,386.25 79
Hillsboro OR 97124 7.100 $ 9,800,000 $ 9,786,133.03 118
Anaheim CA 92805 7.250 $ 8,700,000 $ 8,694,965.24 119
Lapeer MI 48446 7.140 $ 8,060,000 $ 8,027,483.65 115
Olathe KS 66061 7.390 $ 7,700,000 $ 7,667,610.45 114
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Champaign IL 61820 7.260 $ 6,800,000 $ 6,790,750.00 118
Concord NH 03301 6.910 $ 6,578,000 $ 6,561,439.80 117
Midland MI 48462 7.140 $ 6,490,000 $ 6,463,817.48 115
Madison WI 53715 6.970 $ 6,400,000 $ 6,400,000.00 180
Columbus OH 43209 7.570 $ 5,931,098 $ 5,913,422.28 237
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Birmingham AL 35215 7.240 $ 5,100,000 $ 5,090,030.82 117
Staten Island NY 10314 7.330 $ 4,300,000 $ 4,286,556.94 117
Cedar Rapids IA 52402 8.400 $ 4,200,000 $ 4,170,409.81 169
Memphis TN 38104 7.190 $ 3,900,000 $ 3,886,102.54 118
Urbana IL 68101 7.140 $ 3,500,000 $ 3,495,095.83 118
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Staten Island NY 10314 7.360 $ 3,200,000 $ 3,190,055.08 117
N. Las Vegas NV 89030 7.290 $ 2,750,000 $ 2,744,696.11 117
Zephyrhills FL 33541 7.110 $ 2,450,000 $ 2,446,541.72 118
Quincy IL 62301 6.990 $ 2,400,000 $ 2,398,494.86 119
Kalamazoo MI 49006 7.250 $ 2,360,000 $ 2,355,399.15 117
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Urbana IL 61801 7.360 $ 2,320,000 $ 2,316,921.86 118
Lapeer MI 48446 7.140 $ 1,820,000 $ 1,812,657.59 115
Birmingham AL 35211 7.380 $ 1,750,000 $ 1,746,278.71 118
Edgewood WA 98372 7.220 $ 1,700,000 $ 1,697,664.48 118
Anchorage AK 99503 6.810 $ 1,600,000 $ 1,596,220.17 118
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Lapeer MI 48446 7.140 $ 1,440,000 $ 1,434,190.63 115
Littleton CO 80120 7.220 $ 1,400,000 $ 1,395,557.64 80
Post Falls ID 83854 7.220 $ 1,155,000 $ 1,153,413.21 118
Milwaukee WI 53212 7.550 $ 920,000 $ 920,000.00 120
Columbus OH 43209 7.570 $ 918,902 $ 916,164.02 237
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San Antonio TX 78231 7.560 $ 28,000,000 $ 27,850,130.85 172
Presque Isle ME 04769 7.560 $ 17,350,000 $ 17,350,000.00 120
Venice FL 34293 7.140 $ 13,500,000 $ 13,467,516.33 117
City of Industry CA 91745 7.520 $ 13,500,000 $ 13,449,476.17 115
Lincoln NE 68504 7.440 $ 10,600,000 $ 10,546,188.38 237
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Kahului, Maui HI 96732 7.780 $ 7,850,000 $ 7,797,837.91 188
Lancaster PA 17601 7.140 $ 4,800,000 $ 4,793,274.27 118
Columbus OH 43214 7.570 $ 3,200,000 $ 3,184,055.00 237
North Kingston RI 02852 7.330 $ 2,700,000 $ 2,696,390.69 118
Newport NC 28570 7.150 $ 2,400,000 $ 2,381,726.75 236
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Paris TX 75461 7.140 $ 1,800,000 $ 1,795,668.84 117
Columbus OH 43123 7.390 $ 1,250,000 $ 1,245,665.85 118
Columbus OH 43227 7.570 $ 885,000 $ 880,590.20 237
Delaware OH 43015 7.390 $ 800,000 $ 795,269.67 118
East Hanover NJ 07936 7.220 $ 10,000,000 $ 9,976,086.57 118
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Columbus OH 43220 7.570 $ 7,100,000 $ 7,064,622.01 237
Mundelein IL 60060 7.310 $ 6,000,000 $ 5,995,374.96 119
National City CA 91950 7.400 $ 5,400,000 $ 5,400,000.00 120
Houston TX 77060 7.290 $ 4,675,000 $ 4,665,983.40 117
San Antonio TX 78238 7.540 $ 4,500,000 $ 4,490,715.87 118
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Duluth GA 30096 7.250 $ 4,350,000 $ 4,345,648.81 120
Brooklyn NY 11234 7.650 $ 3,750,000 $ 3,746,624.04 119
Limerick PA 19468 7.490 $ 3,200,000 $ 3,193,335.06 118
Bethlehem PA 18020 7.230 $ 2,900,000 $ 2,890,816.07 116
Manalapan NJ 07726 7.610 $ 2,700,000 $ 2,692,018.43 117
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Washington MI 48094 7.430 $ 2,410,000 $ 2,406,361.20 118
Columbus OH 43229 7.570 $ 2,325,000 $ 2,313,414.96 237
Columbus OH 43213 7.570 $ 2,325,000 $ 2,313,414.96 237
Dallas TX 75234 7.460 $ 2,100,000 $ 2,098,025.95 119
Los Angeles CA 90027 7.100 $ 2,075,000 $ 2,067,514.86 178
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Gainesville FL 32607 7.710 $ 1,860,000 $ 1,859,074.96 119
Columbus OH 43213 7.570 $ 1,780,000 $ 1,771,130.60 237
Mesa AZ 85210 7.740 $ 1,750,000 $ 1,746,524.92 118
Columbus OH 43232 7.570 $ 1,725,000 $ 1,716,404.64 237
Los Angeles CA 91607 7.400 $ 1,625,000 $ 1,623,451.75 119
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Baltimore MD 21212 7.170 $ 1,465,000 $ 1,446,608.85 176
Philadelphia PA 19127 7.620 $ 1,350,000 $ 1,329,852.32 175
Van Nuys CA 91405 7.490 $ 1,200,000 $ 1,198,459.19 118
Columbus OH 43229 7.570 $ 1,185,000 $ 1,179,095.38 237
Houston TX 77075 7.710 $ 1,150,000 $ 1,148,732.65 119
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Columbus OH 43228 7.570 $ 1,100,000 $ 1,094,518.90 237
Round Rock TX 78717 7.670 $ 1,050,000 $ 1,046,483.72 177
Mesa AZ 85202 7.150 $ 900,000 $ 898,002.29 118
Chandler AZ 85224 7.300 $ 850,000 $ 848,165.20 118
Savannah GA 31401 7.320 $ 13,500,000 $ 13,486,906.42 119
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Savannah GA 31401 7.320 $ 12,000,000 $ 11,988,361.26 119
Alpharetta GA 30201 7.530 $ 6,550,000 $ 6,530,322.65 117
Durango CO 81301 7.850 $ 5,150,000 $ 5,105,990.15 115
Alpharetta GA 30004 7.540 $ 4,350,000 $ 4,345,984.20 119
Hopewell VA 23860 7.590 $ 4,075,000 $ 4,061,255.25 238
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Gainsville FL 32608 7.630 $ 3,935,000 $ 3,927,019.50 118
LaCrosse WI 54601 8.770 $ 3,725,000 $ 3,696,667.69 172
Hopewell VA 23860 7.590 $ 3,637,500 $ 3,625,230.90 238
St. Augustine FL 32084 7.650 $ 3,550,000 $ 3,546,804.10 119
Aiken SC 29803 7.580 $ 3,500,000 $ 3,488,178.32 118
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Thomasville NC 27340 7.490 $ 2,625,000 $ 2,622,549.07 119
Maplewood MN 55119 8.600 $ 2,200,000 $ 2,175,217.86 233
Greer SC 29650 7.760 $ 1,700,000 $ 1,695,125.54 117
Greenfield IN 46140 7.260 $ 1,650,000 $ 1,644,769.92 117
Savannah GA 31419 8.010 $ 1,650,000 $ 1,644,429.69 117
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Wausau WI 54401 9.020 $ 1,575,000 $ 1,567,893.11 175
Augusta GA 30901 7.210 $ 3,600,000 $ 3,591,377.47 82
Gilroy CA 95020 7.920 $ 3,600,000 $ 3,525,189.81 173
Nashua NH 03061 7.640 $ 3,131,439 $ 3,127,569.17 118
Irvine CA 92714 7.490 $ 3,000,000 $ 2,993,751.61 118
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Temecula CA 92590 7.850 $ 2,600,000 $ 2,590,889.70 115
Hudson MA 01749 7.820 $ 2,350,000 $ 2,348,364.67 119
Stamford CT 06902 7.600 $ 2,168,675 $ 2,136,251.03 175
Tampa FL 33619 7.150 $ 1,850,000 $ 1,843,371.65 118
Richardson TX 75081 7.150 $ 1,240,000 $ 1,235,983.97 117
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Rancho Santa Margarita CA 92688 7.230 $ 1,200,000 $ 1,199,301.16 119
Irvine CA 92618 7.130 $ 1,100,000 $ 1,097,785.96 117
Milford OH 45150 7.640 $ 968,561 $ 967,364.42 118
Tuscon AZ 85710 7.100 $ 12,800,000 $ 12,786,971.86 119
Columbus TX 78934 7.440 $ 4,500,000 $ 4,490,538.46 118
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Detroit MI 48234 8.080 $ 2,300,000 $ 2,293,828.61 117
Sonoma CA 95476 7.910 $ 1,800,000 $ 1,788,285.13 114
San Antonio TX 78242 7.440 $ 2,500,000 $ 2,495,370.78 117
Kansas City MO 64133 7.750 $ 1,170,000 $ 1,169,426.11 83
Pasadena CA 91103 7.850 $ 1,565,000 $ 1,545,676.04 232
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$ 1,012,527,500 $ 1,009,500,069.93
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CROSS
SCHEDULED DUE MONTHLY ADMINISTRATIVE SUB-SERVICING OWNERSHIP LOAN COLLATERALIZED
MATURITY DATE DATE PAYMENT FEE RATE FEE RATE INTEREST CONTRIBUTOR LOANS
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
02/01/13 1 $ 1,296,910.27 0.0629 0.0400 Fee/Leasehold Citicorp
12/01/15 1 $ 335,360.00 0.0629 0.0400 Fee Simple Citicorp
04/01/08 1 $ 164,315.41 0.0629 0.0400 Fee Simple Citicorp
05/01/08 1 $ 94,746.20 0.0629 0.0400 Fee Simple Citicorp
01/01/13 1 $ 91,697.18 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
05/01/08 1 $ 60,665.04 0.0629 0.0400 Fee Simple Citicorp
11/01/07 1 $ 70,000.90 0.0729 0.0500 Fee Simple JPM
05/01/08 1 $ 45,716.29 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 42,861.13 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 33,810.82 0.1479 0.1250 Fee/Leasehold Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
04/01/08 1 $ 27,886.46 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 20,104.20 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 17,020.51 0.0629 0.0400 Fee Simple Citicorp
05/01/08 1 $ 17,511.81 0.1229 0.1000 Fee Simple Citicorp
05/01/08 1 $ 16,060.69 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/08 1 $ 13,657.09 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 13,688.13 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 11,917.68 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 11,316.16 0.1479 0.1250 Fee Simple Citicorp
02/01/13 1 $ 13,718.32 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
05/01/08 1 $ 10,249.86 0.1129 0.0900 Fee Simple Citicorp
04/01/08 1 $ 9,532.01 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 9,462.50 0.1129 0.0900 Fee Simple Citicorp
05/01/08 1 $ 8,467.94 0.0629 0.0400 Fee/Leasehold Citicorp
05/01/08 1 $ 6,979.84 0.1129 0.0900 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
05/01/08 1 $ 6,384.00 0.1129 0.0900 Fee Simple Citicorp
05/01/08 1 $ 4,624.85 0.1129 0.0900 Fee Simple Citicorp
05/01/08 1 $ 4,468.80 0.1129 0.0900 Fee Simple Citicorp
03/01/18 1 $ 4,251.86 0.0629 0.0400 Fee Simple Citicorp Yes(c)
05/31/28 1 $ 698,333.60 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/08 1 $ 19,371.88 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 15,364.23 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 10,888.98 0.0629 0.0400 Fee Simple Citicorp
05/01/08 1 $ 8,014.77 0.1479 0.1250 Fee Simple Citicorp
12/01/07 1 $ 221,859.91 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
12/01/07 1 $ 126,377.47 0.0829 0.0600 Fee Simple Citicorp
03/01/08 1 $ 97,980.58 0.0729 0.0500 Fee Simple JPM Yes(d)
04/01/08 1 $ 81,699.27 0.0629 0.0400 Fee Simple Citicorp
02/01/08 1 $ 77,512.97 0.0629 0.0400 Fee Simple Citicorp
04/01/08 1 $ 69,470.50 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
01/01/05 1 $ 67,270.64 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 65,859.13 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 59,349.34 0.1229 0.1000 Fee Simple Citicorp
01/01/08 1 $ 54,383.34 0.0729 0.0500 Fee Simple JPM Yes(e)
12/01/07 1 $ 53,260.73 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
04/01/08 1 $ 46,434.12 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 43,366.72 0.0729 0.0500 Fee Simple JPM Yes(d)
01/01/08 1 $ 43,790.06 0.0729 0.0500 Fee Simple JPM
06/01/13 1 $ 57,417.72 0.0729 0.0500 Fee Simple JPM
03/01/18 1 $ 44,100.70 0.0629 0.0400 Fee Simple Citicorp Yes(c)
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/08 1 $ 34,756.41 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 31,302.66 0.0629 0.0400 Fee Simple Citicorp Yes(a)
07/01/12 1 $ 31,997.18 0.0629 0.0400 Fee Simple JPM
04/01/08 1 $ 30,683.04 0.1479 0.1250 Fee Simple Citicorp
03/31/08 1 $ 23,615.59 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/08 1 $ 23,357.08 0.0629 0.0400 Fee Simple Citicorp Yes(a)
03/01/08 1 $ 18,834.52 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 16,481.31 0.0629 0.0400 Fee Simple Citicorp
05/01/08 1 $ 15,951.14 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 16,099.36 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
04/01/08 1 $ 15,999.95 0.1479 0.1250 Fee Simple Citicorp
01/01/08 1 $ 12,280.11 0.0729 0.0500 Fee Simple JPM Yes(e)
04/01/08 1 $ 12,796.06 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 11,562.42 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 11,115.28 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
01/01/08 1 $ 9,716.13 0.0729 0.0500 Fee Simple JPM Yes(e)
02/01/05 1 $ 9,522.00 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 7,855.65 0.1479 0.1250 Fee Simple Citicorp
06/01/08 1 $ 6,464.30 0.1479 0.1250 Fee Simple Citicorp
03/01/18 1 $ 6,832.50 0.0629 0.0400 Fee Simple Citicorp Yes(c)
- ----------------------------------------------------------------------------------------------------------------------------------
10/01/12 1 $ 196,931.73 0.0529 0.0300 Fee Simple Citicorp
06/01/08 1 $ 128,892.86 0.0979 0.0750 Fee Simple Citicorp
03/01/08 1 $ 91,088.72 0.0729 0.0500 Fee Simple JPM
01/01/08 1 $ 94,578.91 0.0629 0.0400 Fee Simple JPM
03/01/18 1 $ 85,004.41 0.1029 0.0800 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
02/01/14 1 $ 59,448.00 0.0629 0.0400 Fee/Leasehold JPM
04/01/08 1 $ 32,387.10 0.0629 0.0400 Fee Simple Citicorp
03/01/18 1 $ 25,916.12 0.0629 0.0400 Fee Simple Citicorp Yes(c)
04/01/08 1 $ 18,565.49 0.0979 0.0750 Fee Simple Citicorp
02/01/18 1 $ 18,823.88 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/08 1 $ 12,145.16 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 9,986.01 0.1479 0.1250 Fee Simple Citicorp
03/01/18 1 $ 7,167.43 0.0629 0.0400 Fee Simple Citicorp Yes(c)
04/01/08 1 $ 7,366.18 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 72,087.52 0.0729 0.0500 Fee Simple JPM
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/18 1 $ 57,501.40 0.0629 0.0400 Fee Simple Citicorp Yes(c)
05/01/08 1 $ 41,175.04 0.0629 0.0400 Fee Simple JPM
06/01/08 1 $ 37,388.51 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 32,018.68 0.1029 0.0800 Fee Simple Citicorp
04/01/08 1 $ 33,371.77 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
06/01/08 1 $ 30,632.44 0.0729 0.0500 Fee Simple JPM
05/01/08 1 $ 28,079.08 0.0629 0.0400 Fee Simple Citicorp
04/01/08 1 $ 23,626.91 0.1479 0.1250 Fee Simple Citicorp
02/01/08 1 $ 19,743.79 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 20,146.34 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
04/01/08 1 $ 16,735.70 0.0729 0.0500 Fee Simple JPM
03/01/18 1 $ 18,829.68 0.0629 0.0400 Fee Simple Citicorp Yes(c)
03/01/18 1 $ 18,829.68 0.0629 0.0400 Fee Simple Citicorp Yes(c)
05/01/08 1 $ 15,464.22 0.1479 0.1250 Fee Simple Citicorp
04/01/13 1 $ 16,212.24 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
05/01/08 1 $ 13,273.89 0.1479 0.1250 Fee Simple Citicorp
03/01/18 1 $ 14,415.84 0.0629 0.0400 Fee Simple Citicorp Yes(c)
04/01/08 1 $ 13,206.77 0.1479 0.1250 Fee Simple Citicorp
03/01/18 1 $ 13,970.41 0.0629 0.0400 Fee Simple Citicorp Yes(c)
05/01/08 1 $ 11,903.11 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
02/01/13 1 $ 13,307.47 0.1479 0.1250 Fee Simple Citicorp
01/01/13 1 $ 12,606.90 0.0629 0.0400 Fee Simple Citicorp
04/01/08 1 $ 8,382.36 0.0629 0.0400 Fee Simple Citicorp
03/01/18 1 $ 9,597.06 0.0629 0.0400 Fee Simple Citicorp Yes(c)
05/01/08 1 $ 8,656.10 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/18 1 $ 8,908.67 0.0629 0.0400 Fee Simple Citicorp Yes(c)
03/01/13 1 $ 7,875.88 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 6,447.39 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 6,171.27 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 98,188.58 0.0779 0.0550 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
05/01/08 1 $ 87,278.74 0.0779 0.0550 Fee Simple Citicorp
03/01/08 1 $ 48,531.81 0.0979 0.0750 Fee Simple Citicorp
01/01/08 1 $ 42,597.14 0.0629 0.0400 Fee Simple Citicorp
05/01/08 1 $ 32,259.38 0.1479 0.1250 Fee Simple Citicorp
04/01/18 1 $ 33,052.54 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
04/01/08 1 $ 29,412.86 0.1179 0.0950 Fee Simple Citicorp
10/01/12 1 $ 30,675.48 0.0629 0.0400 Fee/Leasehold JPM
04/01/18 1 $ 29,503.96 0.1479 0.1250 Fee Simple Citicorp
05/01/08 1 $ 26,581.53 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 28,367.22 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
05/01/08 1 $ 19,381.45 0.1479 0.1250 Fee Simple Citicorp
11/01/17 1 $ 19,231.58 0.0629 0.0400 Fee Simple JPM
03/01/08 1 $ 12,851.75 0.0629 0.0400 Fee Simple Citicorp
03/01/08 1 $ 11,936.95 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 13,102.65 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
01/01/13 1 $ 13,238.92 0.0629 0.0400 Fee Simple JPM
04/01/05 1 $ 25,928.35 0.0629 0.0400 Fee Simple JPM
11/01/12 1 $ 34,237.42 0.0729 0.0500 Fee Simple JPM
04/01/08 1 $ 22,196.45 0.1479 0.1250 Fee Simple Citicorp Yes(b)
04/01/08 1 $ 22,150.23 0.1029 0.0800 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
01/01/08 1 $ 18,806.71 0.0629 0.0400 Fee Simple JPM
05/01/08 1 $ 16,949.50 0.0629 0.0400 Fee Simple JPM
01/01/13 1 $ 20,227.32 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 14,510.07 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 8,883.07 0.0629 0.0400 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
05/01/08 1 $ 8,169.84 0.1479 0.1250 Fee Simple Citicorp
03/01/08 1 $ 7,414.62 0.1479 0.1250 Fee Simple Citicorp
04/01/08 1 $ 6,865.41 0.1479 0.1250 Fee Simple Citicorp Yes(b)
05/01/08 1 $ 91,285.92 0.0629 0.0400 Fee Simple Citicorp
04/01/08 1 $ 33,079.18 0.1479 0.1250 Fee Simple Citicorp
- ----------------------------------------------------------------------------------------------------------------------------------
03/01/08 1 $ 17,873.84 0.1479 0.1250 Fee Simple Citicorp
12/01/07 1 $ 13,785.55 0.0629 0.0400 Fee Simple JPM
03/01/08 1 $ 17,377.77 0.1479 0.1250 Fee Simple Citicorp
05/01/05 1 $ 8,382.02 0.1479 0.1250 Fee Simple Citicorp
10/01/17 1 $ 12,944.57 0.0629 0.0400 Fee Simple JPM
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ANTICIPATED LOAN
LOAN BALANCE NET MORTGAGE
TYPE DEFEASANCE FLAG SELLER AT MATURITY/ARD RATE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Hyperamortizing (ARD) Yes CREI $ 128,999,124.00 6.9671
Fully Amortizing Yes CREI 7.7971
Balloon No CREI $ 20,396,821.92 7.4371
Balloon No CREI $ 12,268,606.00 7.1071
Fully Amortizing No CREI $ 204,385.06 7.4521
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 7,878,711.00 7.0671
Balloon No CREI $ 7,285,270.73 8.0171
Balloon No CREI $ 5,753,261.00 7.4121
Balloon No CREI $ 5,397,859.00 7.4021
Balloon No CREI $ 2,873,508.00 7.6621
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 3,531,993.00 7.3221
Balloon No CREI $ 2,589,566.00 7.0921
Balloon No CREI $ 2,194,246.00 7.1671
Balloon No CREI $ 2,200,618.00 7.4571
Balloon No CREI $ 1,758,866.00 7.4221
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,756,817.00 7.1121
Balloon No CREI $ 1,724,885.00 7.3921
Balloon No CREI $ 1,303,643.00 7.4421
Balloon No CREI $ 1,401,679.68 7.6321
Fully Amortizing No CREI $ 28,225.61 7.1321
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,157,768.00 6.9271
Balloon No CREI $ 1,195,943.00 7.4521
Balloon No CREI $ 1,068,832.00 6.9271
Balloon No CREI $ 1,095,696.00 7.1171
Balloon No CREI $ 788,403.00 6.9271
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 721,101.00 6.9271
Balloon No CREI $ 522,398.00 6.9271
Balloon No CREI $ 504,770.00 6.9271
Fully Amortizing No CREI $ 20,673.00 7.5071
Hyperamortizing (ARD) No CREI $ 92,057,825.91 6.6571
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 2,532,756.25 6.8921
Balloon No CREI $ 1,976,115.00 7.1121
Balloon No CREI $ 1,436,411.00 6.8571
Balloon No CREI $ 889,526.00 7.1921
Balloon No CREI $ 28,221,417.04 7.1171
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 16,237,565.85 6.9671
Balloon No CREI $ 12,726,305.98 6.8371
Balloon No CREI $ 10,080,105.00 6.6571
Balloon No CREI $ 10,379,658.42 6.6471
Balloon No CREI $ 7,953,492.00 6.7471
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 9,220,128.00 6.9621
Balloon No CREI $ 8,571,277.00 6.9521
Balloon No CREI $ 7,639,938.00 7.1271
Balloon No CREI $ 6,939,087.11 7.0671
Balloon No CREI $ 6,782,475.00 7.2421
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 5,972,259.00 7.1121
Balloon No CREI $ 5,632,731.23 6.8371
Balloon No CREI $ 5,587,428.55 7.0671
Fully Amortizing No CREI $ - 6.8971
Balloon No CREI $ 2,460,340.49 7.5071
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 4,477,560.00 7.0921
Balloon No CREI $ 3,476,305.14 7.2671
Balloon No CREI $ 3,268,732.70 8.3371
Balloon No CREI $ 2,673,719.00 7.0421
Balloon No CREI $ 3,069,128.54 6.9921
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 2,589,382.00 7.2971
Balloon No CREI $ 2,417,494.00 7.1421
Balloon No CREI $ 2,143,381.00 7.0471
Balloon No CREI $ 2,093,234.73 6.8421
Balloon No CREI $ 2,072,507.00 7.1021
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 2,042,838.00 7.2121
Balloon No CREI $ 1,566,890.47 7.0671
Balloon No CREI $ 1,416,670.00 7.2321
Balloon No CREI $ 1,491,520.41 7.0721
Balloon No CREI $ 1,272,559.00 6.7471
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,239,737.69 7.0671
Balloon No CREI $ 1,293,093.00 7.0721
Balloon No CREI $ 1,013,355.56 7.0721
Balloon No CREI $ 813,968.77 7.4021
Balloon No CREI $ 381,179.51 7.5071
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 21,962,766.00 7.5071
Balloon No CREI $ 14,121,010.00 7.4621
Balloon No CREI $ 11,622,540.59 7.0671
Balloon No CREI $ 11,722,480.11 7.4571
Fully Amortizing No CREI $ 401,632.00 7.3371
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 4,547,245.58 7.7171
Balloon No CREI $ 4,202,581.00 7.0771
Fully Amortizing No CREI $ 125,995.00 7.5071
Balloon No CREI $ 2,375,615.00 7.2321
Fully Amortizing No CREI $ 78,494.00 7.0871
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,549,672.51 6.9921
Balloon No CREI $ 863,147.74 7.2421
Fully Amortizing No CREI $ 34,844.00 7.5071
Balloon No CREI $ 378,928.00 7.2421
Balloon No CREI $ 7,911,510.76 7.1471
- ----------------------------------------------------------------------------------------------------
Fully Amortizing No CREI $ 279,547.00 7.5071
Balloon No CREI $ 5,185,672.26 7.2471
Balloon Yes CREI $ 4,759,582.00 7.2521
Balloon No CREI $ 4,109,741.14 7.1871
Balloon No CREI $ 3,660,461.00 7.3921
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 3,577,459.55 7.1771
Balloon No CREI $ 3,060,875.00 7.5871
Balloon No CREI $ 2,599,094.00 7.3421
Balloon No CREI $ 2,543,195.00 7.0821
Balloon No CREI $ 2,201,293.00 7.5471
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 2,088,521.65 7.3571
Fully Amortizing No CREI $ 91,544.00 7.5071
Fully Amortizing No CREI $ 91,544.00 7.5071
Balloon No CREI $ 1,704,371.00 7.3121
Balloon No CREI $ 863,675.00 7.0371
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,652,470.67 7.5621
Fully Amortizing No CREI $ 70,086.00 7.5071
Balloon No CREI $ 1,431,989.00 7.5921
Fully Amortizing No CREI $ 67,918.00 7.5071
Balloon No CREI $ 1,316,469.00 7.3371
- ----------------------------------------------------------------------------------------------------
Fully Amortizing No CREI $ 26,793.00 7.0221
Fully Amortizing No CREI $ 28,208.00 7.5571
Balloon No CREI $ 1,060,133.00 7.4271
Fully Amortizing No CREI $ 46,659.00 7.5071
Balloon No CREI $ 921,856.93 7.5621
- ----------------------------------------------------------------------------------------------------
Fully Amortizing No CREI $ 43,308.00 7.5071
Balloon No CREI $ 658,570.36 7.5221
Balloon No CREI $ 723,467.00 7.0021
Balloon No CREI $ 686,424.85 7.1521
Balloon No CREI $ 10,910,267.00 7.2421
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 9,698,015.00 7.2421
Balloon No CREI $ 5,327,416.00 7.4321
Balloon No CREI $ 3,611,454.96 7.7871
Balloon No CREI $ 3,538,982.00 7.3921
Fully Amortizing No CREI $ 159,193.00 7.4421
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 3,209,470.00 7.5121
Balloon No CREI $ 2,445,541.22 8.7071
Fully Amortizing No CREI $ 142,098.00 7.4421
Balloon No CREI $ 2,897,628.00 7.5021
Balloon No CREI $ 2,433,216.00 7.5171
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 2,132,388.86 7.3421
Fully Amortizing No CREI $ - 8.5371
Balloon No CREI $ 1,392,174.00 7.6971
Balloon No CREI $ 1,331,081.00 7.1121
Balloon No CREI $ 1,295,394.00 7.8621
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,044,210.40 8.9571
Balloon No CREI $ 3,132,137.66 7.1471
Fully Amortizing No CREI $ - 7.8471
Balloon No CREI $ 2,776,852.93 7.4921
Balloon No CREI $ 2,436,650.00 7.3871
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 2,273,732.97 7.7871
Balloon No CREI $ 2,053,807.81 7.7571
Fully Amortizing No CREI $ 45,084.94 7.4521
Balloon No CREI $ 1,266,468.00 7.0021
Balloon No CREI $ 996,948.00 7.0871
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,053,239.00 7.0821
Balloon No CREI $ 962,981.00 6.9821
Balloon No CREI $ 858,887.07 7.4921
Balloon No CREI $ 10,274,807.00 7.0371
Balloon No CREI $ 3,649,480.00 7.2921
- ----------------------------------------------------------------------------------------------------
Balloon No CREI $ 1,901,143.00 7.9321
Balloon No CREI $ 1,450,401.58 7.8471
Balloon No CREI $ 2,206,175.00 7.2921
Balloon No CREI $ 1,090,424.00 7.6021
Fully Amortizing No CREI $ - 7.7871
- ----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
FIRST INTEREST ORIGINAL TERM ORIGINAL
NOTE PAYMENT ACCRUAL TO MATURITY/ARD AMORTIZATION
DATE DATE METHOD (MONTHS) TERM (MONTHS)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
01/30/98 03/01/98 Actual/360 120 300
07/11/97 09/01/97 30/360 220 220
03/13/98 05/01/98 30/360 120 360
04/23/98 06/01/98 Actual/360 120 360
12/12/97 02/01/98 Actual/360 180 180
- ----------------------------------------------------------------------------------------------------------------------------
04/23/98 06/01/98 Actual/360 120 360
10/30/97 12/01/97 30/360 120 300
04/23/98 06/01/98 Actual/360 120 360
04/24/98 06/01/98 Actual/360 120 360
03/04/98 05/01/98 Actual/360 120 240
- ----------------------------------------------------------------------------------------------------------------------------
03/12/98 05/01/98 Actual/360 120 360
03/30/98 05/01/98 Actual/360 120 360
04/23/98 06/01/98 Actual/360 120 360
04/17/98 06/01/98 Actual/360 120 360
04/21/98 06/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
02/18/98 04/01/98 Actual/360 120 360
03/23/98 05/01/98 Actual/360 120 360
04/17/98 06/01/98 Actual/360 120 300
05/05/98 06/01/98 Actual/360 120 360
01/08/98 03/01/98 Actual/360 180 180
- ----------------------------------------------------------------------------------------------------------------------------
04/02/98 06/01/98 Actual/360 120 300
03/31/98 05/01/98 Actual/360 120 360
04/02/98 06/01/98 Actual/360 120 300
04/23/98 06/01/98 Actual/360 120 360
04/02/98 06/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
04/02/98 06/01/98 Actual/360 120 300
04/02/98 06/01/98 Actual/360 120 300
04/02/98 06/01/98 Actual/360 120 300
02/23/98 04/01/98 Actual/360 240 240
06/01/98 07/01/98 30/360 120 360
- ----------------------------------------------------------------------------------------------------------------------------
03/05/98 04/01/98 Actual/360 120 360
03/02/98 05/01/98 Actual/360 120 360
04/23/98 06/01/98 Actual/360 120 360
04/03/98 06/01/98 Actual/360 120 300
11/18/97 01/01/98 30/360 120 360
- ----------------------------------------------------------------------------------------------------------------------------
11/24/97 01/01/98 30/360 120 360
02/17/98 04/01/98 30/360 120 360
03/31/98 05/01/98 Actual/360 120 324
01/16/98 03/01/98 Actual/360 120 360
03/31/98 05/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
12/19/97 02/01/98 Actual/360 84 360
03/17/98 05/01/98 Actual/360 120 360
04/15/98 06/01/98 Actual/360 120 360
12/23/97 02/01/98 30/360 120 360
11/04/97 01/01/98 Actual/360 120 360
- ----------------------------------------------------------------------------------------------------------------------------
03/31/98 05/01/98 Actual/360 120 360
02/17/98 04/01/98 30/360 120 360
12/23/97 02/01/98 30/360 120 360
05/22/98 07/01/98 30/360 180 180
02/23/98 04/01/98 Actual/360 240 300
- ----------------------------------------------------------------------------------------------------------------------------
02/10/98 04/01/98 Actual/360 120 360
02/10/98 04/01/98 Actual/360 120 300
06/30/97 08/01/97 30/360 180 360
03/03/98 05/01/98 Actual/360 120 240
03/20/98 05/01/98 Actual/360 120 360
- ----------------------------------------------------------------------------------------------------------------------------
02/10/98 04/01/98 Actual/360 120 300
02/25/98 04/01/98 Actual/360 120 360
03/19/98 05/01/98 Actual/360 120 360
04/10/98 06/01/98 Actual/360 120 360
02/17/98 04/01/98 Actual/360 120 360
- ----------------------------------------------------------------------------------------------------------------------------
03/31/98 05/01/98 Actual/360 120 360
12/23/97 02/01/98 30/360 120 360
03/16/98 05/01/98 Actual/360 120 300
03/13/98 05/01/98 Actual/360 120 360
03/31/98 05/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
12/23/97 02/01/98 30/360 120 360
01/23/98 03/01/98 Actual/360 84 360
03/02/98 05/01/98 Actual/360 120 360
04/30/98 07/01/98 Actual/360 120 360
02/23/98 04/01/98 Actual/360 240 300
- ----------------------------------------------------------------------------------------------------------------------------
10/01/97 11/01/97 Actual/360 180 360
05/28/98 07/01/98 Actual/360 120 300
02/26/98 04/01/98 30/360 120 360
12/12/97 02/01/98 30/360 120 360
02/03/98 04/01/98 Actual/360 240 240
- ----------------------------------------------------------------------------------------------------------------------------
10/31/97 01/01/98 30/360 194 300
03/11/98 05/01/98 Actual/360 120 360
02/23/98 04/01/98 Actual/360 240 240
03/12/98 05/01/98 Actual/360 120 360
01/22/98 03/01/98 Actual/360 240 240
- ----------------------------------------------------------------------------------------------------------------------------
02/18/98 04/01/98 30/360 120 360
03/20/98 05/01/98 Actual/360 120 240
02/23/98 04/01/98 Actual/360 240 240
03/20/98 05/01/98 Actual/360 120 180
03/23/98 05/01/98 30/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
02/23/98 04/01/98 Actual/360 240 240
04/14/98 06/01/98 30/360 120 360
05/28/98 07/01/98 Actual/360 120 360
02/20/98 04/01/98 Actual/360 120 360
03/05/98 05/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
04/07/98 06/01/98 30/360 121 324
04/27/98 06/01/98 Actual/360 120 300
03/05/98 05/01/98 Actual/360 120 300
01/13/98 03/01/98 Actual/360 120 360
02/25/98 04/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
03/27/98 05/01/98 30/360 120 360
02/23/98 04/01/98 Actual/360 240 240
02/23/98 04/01/98 Actual/360 240 240
04/20/98 06/01/98 Actual/360 120 300
03/17/98 05/01/98 Actual/360 180 240
- ----------------------------------------------------------------------------------------------------------------------------
04/02/98 06/01/98 Actual/360 120 360
02/23/98 04/01/98 Actual/360 240 240
03/11/98 05/01/98 Actual/360 120 300
02/23/98 04/01/98 Actual/360 240 240
04/10/98 06/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
01/29/98 03/01/98 Actual/360 180 180
12/19/97 02/01/98 Actual/360 180 180
03/23/98 05/01/98 Actual/360 120 360
02/23/98 04/01/98 Actual/360 240 240
04/14/98 06/01/98 30/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
02/23/98 04/01/98 Actual/360 240 240
02/26/98 04/01/98 30/360 180 300
03/13/98 05/01/98 Actual/360 120 300
03/13/98 05/01/98 Actual/360 120 300
04/03/98 06/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
04/03/98 06/01/98 Actual/360 120 300
02/13/98 04/01/98 Actual/360 120 300
12/26/97 02/01/98 Actual/360 120 240
04/02/98 06/01/98 Actual/360 120 300
03/24/98 05/01/98 Actual/360 240 240
- ----------------------------------------------------------------------------------------------------------------------------
03/31/98 05/01/98 Actual/360 120 300
09/25/97 11/01/97 30/360 180 300
03/24/98 05/01/98 Actual/360 240 240
04/15/98 06/01/98 Actual/360 120 300
03/10/98 05/01/98 Actual/360 120 240
- ----------------------------------------------------------------------------------------------------------------------------
04/02/98 06/01/98 Actual/360 120 300
10/24/97 12/01/97 30/360 240 240
02/20/98 04/01/98 Actual/360 120 300
02/24/98 04/01/98 Actual/360 120 300
02/24/98 04/01/98 Actual/360 120 276
- ----------------------------------------------------------------------------------------------------------------------------
12/04/97 02/01/98 30/360 180 300
03/19/98 05/01/98 30/360 84 300
10/30/97 12/01/97 30/360 180 180
03/31/98 05/01/98 Actual/360 120 360
03/13/98 05/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
12/31/97 02/01/98 30/360 120 360
04/24/98 06/01/98 30/360 120 360
12/12/97 02/01/98 Actual/360 180 180
03/24/98 05/01/98 Actual/360 120 240
02/27/98 04/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
04/07/98 06/01/98 Actual/360 120 360
02/23/98 04/01/98 Actual/360 120 360
03/31/98 05/01/98 Actual/360 120 360
04/17/98 06/01/98 Actual/360 120 300
03/05/98 05/01/98 Actual/360 120 300
- ----------------------------------------------------------------------------------------------------------------------------
02/13/98 04/01/98 Actual/360 120 300
11/20/97 01/01/98 30/360 120 300
02/24/98 04/01/98 Actual/360 120 360
04/22/98 06/01/98 Actual/360 84 360
09/29/97 11/01/97 30/360 240 240
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE II
SUB-SERVICING AGREEMENTS IN EFFECT
AS OF THE CLOSING DATE
CITIMAE, INC. COMMERCIAL SELLER-SERVICER CONTRACTS
Seller Servicer Original Contract Date
- --------------- ----------------------
GMAC Commercial Mortgage Corporation December 10, 1993
Financial Federal Savings Bank April 27, 1994
L.J. Melody & Company October 12, 1994
Huntington Capital Corp. January 27, 1994
Keycorp Real Estate Capital Markets, INC. March 26, 1996
Legg Mason Mortgage Capital Corporation October 31, 1996
Mellon Mortgage Company November 16, 1995
Mitchell Mortgage Company, LLC August 30, 1997
CRIIMI MAE Services Limited Partnership May 6, 1998
Sun Trust Mortgage, Inc. February 1, 1998
<PAGE>
SCHEDULE III
Schedule of Exceptions to Mortgage File Delivery
None.
<PAGE>
EXHIBIT A-1
FORM OF CLASS X CERTIFICATE
CLASS X MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-MC2
This is one of a series of multifamily/commercial mortgage pass-through
certificates (collectively, the "Certificates"), issued in multiple classes
(each, a "Class"), which series of Certificates evidences the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting primarily of a
pool (the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Variable Certificate Notional Amount of this
Certificate as of the Issue Date:
$___________________
Date of Pooling and Servicing
Agreement: June 1, 1998
Cut-off Date: June 1, 1998 Class Notional Amount of all the
Class X Certificates as of the Issue
Date: $___________________
Issue Date: June 29, 1998 Aggregate unpaid principal balance of
the Mortgage Pool as of the Cut-off
Date, after deducting payments of
principal due on or before such date
(the "Initial Pool Balance"):
$___________________
First Distribution Date: July 20, 1998
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
CRIIMI MAE Services Limited Partnership State Street Bank and Trust Company
Mortgage Loan Seller: Additional Warranting Party:
Citicorp Real Estate, Inc. Morgan Guaranty Trust Company of New
York
Certificate No. X-___ CUSIP No. _____________
A-1-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE SPONSOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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 MORTGAGE
CAPITAL FUNDING, INC., CITICORP REAL ESTATE, INC., MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, STATE STREET BANK AND TRUST COMPANY, CRIIMI MAE SERVICES
LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. [THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 29, 1998. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (EXCEPT THAT
HYPER-AMORTIZATION LOANS (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN) ARE ASSUMED TO BE REPAID IN THEIR ENTIRETY ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES (ALSO AS DEFINED IN SUCH POOLING AND
SERVICING AGREEMENT)) (THE FOREGOING, THE "PREPAYMENT ASSUMPTION"), THIS
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $_________
OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $_______ PER $________ OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
COMPUTED UNDER A CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND
DOES NOT ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF
PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS OF
A-1-2
<PAGE>
INTEREST ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Issue Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Certificates of the same Class
as this Certificate. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Mortgage Capital Funding, Inc., as Sponsor, and the
Mortgage Loan Seller, Additional Warranting Party, Master Servicer, Special
Servicer, Trustee and REMIC Administrator identified above. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 18th day of each month or, if such 18th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under
the Agreement in respect of this Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five (5) Business Days prior to the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided
in the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
A-1-3
<PAGE>
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents 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 Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The
Agreement permits, but does not require, any such Majority Certificateholder or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
A-1-4
<PAGE>
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the
Master Servicer, the Special Servicer, the Trustee and the REMIC Administrator
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of REMIC I, REMIC II or REMIC III as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated,
made and to be performed in said State, and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
State Street Bank and Trust Company,
as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Multifamily/ Commercial Mortgage Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to the above named
assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Multifamily/Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Multifamily/Commercial Mortgage
Pass-Through Certificate to the following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to ________
_______________) and all applicable statements and notices should be mailed to
______________________________________.
This information is provided by ___________________________, the
assignee named above, or _____________________________, as its agent.
A-1-7
<PAGE>
EXHIBIT A-2
FORM OF CLASS [A-1][A-2] CERTIFICATE
CLASS [A-1][A-2] MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-MC2
This is one of a series of multifamily/commercial mortgage pass-through
certificates (collectively, the "Certificates"), issued in multiple classes
(each, a "Class"), which series of Certificates evidences the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting primarily of a
pool (the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of
______% per annum this Certificate as of the Issue
Date:
$_______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: June 1, 1998 Class [A-1] [A-2] Certificates as
of the Issue Date:
Cut-off Date: June 1, 1998 $_______________
Issue Date: June 29, 1998
First Distribution Date:
July 20, 1998 Aggregate unpaid principal balance
of the Mortgage Pool as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"):
$_______________
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
CRIIMI MAE Services Limited Partnership State Street Bank and Trust Company
Mortgage Loan Seller: Additional Warranting Party:
Citicorp Real Estate, Inc. Morgan Guaranty Trust Company of
New York
Certificate No.[A-1][A-2]-__ CUSIP No. _______________
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE SPONSOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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 MORTGAGE
CAPITAL FUNDING, INC., CITICORP REAL ESTATE, INC., MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, STATE STREET BANK AND TRUST COMPANY, CRIIMI MAE SERVICES
LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
Mortgage Capital Funding, Inc., as Sponsor, and the Mortgage Loan Seller,
Additional Warranting Party, Master Servicer, Special Servicer, Trustee and
REMIC Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 18th day of each month or, if such 18th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
A-2-2
<PAGE>
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under
the Agreement in respect of this Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five (5) Business Days prior to the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar
A-2-3
<PAGE>
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents 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 Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The
Agreement permits, but does not require, any such Majority Certificateholder or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the
Master Servicer, the Special Servicer, the Trustee and the REMIC Administrator
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment
A-2-4
<PAGE>
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated,
made and to be performed in said State, and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
State Street Bank and Trust Company,
as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-2-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Multifamily/ Commercial Mortgage Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to the above named
assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Multifamily/Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Multifamily/Commercial Mortgage
Pass-Through Certificate to the following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ____________________________ for
the account of ___________________________________.
Distributions made by check (such check to be made payable to ________
_______________) and all applicable statements and notices should be mailed to
__________________________________________________.
This information is provided by ________________________________, the
assignee named above, or ____________________________________, as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS [B][C][D][E] CERTIFICATE
CLASS [B][C][D][E] MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-MC2
This is one of a series of multifamily/commercial mortgage pass-through
certificates (collectively, the "Certificates"), issued in multiple classes
(each, a "Class"), which series of Certificates evidences the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting primarily of a
pool (the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this
[_____% per annum][variable] Certificate as of the Issue Date:
$_________________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: June 1, 1998 Class[B][C][D][E] Certificates as of
the Issue Date:
$_________________
Cut-off Date: June 1, 1998 Aggregate unpaid principal balance of
the Mortgage Pool as of the Cut-off
Date, after deducting payments of
principal due on or before such date
Issue Date: June 29, 1998 (the "Initial Pool Balance"):
$____________
First Distribution Date:
July 20, 1998
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
CRIIMI MAE Services Limited Partnership State Street Bank and Trust Company
Mortgage Loan Seller: Additional Warranting Party:
Citicorp Real Estate, Inc. Morgan Guaranty Trust Company of
New York
Certificate No. [B][C][D][E]- __ CUSIP No. ____________
A-3-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE SPONSOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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 MORTGAGE
CAPITAL FUNDING, INC., CITICORP REAL ESTATE, INC., MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, STATE STREET BANK AND TRUST COMPANY, CRIIMI MAE SERVICES
LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY INVESTMENT IN THIS CERTIFICATE BY AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE"), OR BY ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, MAY GIVE RISE TO A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA AND BE SUBJECT TO AN EXCISE TAX UNDER SECTION 4975 OF THE CODE
UNLESS A STATUTORY OR ADMINISTRATIVE EXEMPTION IS AVAILABLE. ACCORDINGLY, ANY
TRANSFEREE OF THIS CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE
MADE CERTAIN REPRESENTATIONS AND WARRANTIES DESCRIBED HEREIN IN THIS REGARD.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE. [OTHE FOLLOWING INFORMATION IS PROVIDED
SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX
ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS JUNE 29, 1998. ASSUMING THAT THE MORTGAGE
A-3-2
<PAGE>
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (EXCEPT THAT
HYPER-AMORTIZATION LOANS (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN) ARE ASSUMED TO BE REPAID IN THEIR ENTIRETY ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES (ALSO AS DEFINED IN SUCH POOLING AND
SERVICING AGREEMENT)) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $__________ OF OID PER $__________ OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% PER ANNUM AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____
PER $_______ OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A
CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE THAT
THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY
PARTICULAR RATE.O]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
Mortgage Capital Funding, Inc., as Sponsor, and the Mortgage Loan Seller,
Additional Warranting Party, Master Servicer, Special Servicer, Trustee and
REMIC Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 18th day of each month or, if such 18th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under
the Agreement in respect of this Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five (5) Business Days prior to the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions
A-3-3
<PAGE>
as well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who acquires this Certificate or any interest herein shall
be deemed to have certified that it is neither a Plan nor any Person who is
directly or indirectly purchasing this Certificate or such interest herein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, or
alternatively, that the purchase, continued holding and transfer of this
Certificate or such
A-3-4
<PAGE>
interest herein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents 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 Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The
Agreement permits, but does not require, any such Majority Certificateholder or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the
Master Servicer, the Special Servicer, the Trustee and the REMIC Administrator
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment
A-3-5
<PAGE>
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated,
made and to be performed in said State, and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
State Street Bank and Trust Company,
as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B][C][D][E] Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-3-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Multifamily/ Commercial Mortgage Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to the above named
assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Multifamily/Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Multifamily/Commercial Mortgage
Pass-Through Certificate to the following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
-----------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________________
for the account of _______________________________________.
Distributions made by check (such check to be made payable to ________
_________________________) and all applicable statements and notices should be
mailed to __________________________________.
This information is provided by _______________________________, the
assignee named above, or ___________________________________, as its agent.
A-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS [F][G][H][J][K][L] CERTIFICATE
CLASS [F][G][H][J][K][L] MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-MC2
This is one of a series of multifamily/commercial mortgage pass-through
certificates (collectively, the "Certificates"), issued in multiple classes
(each, a "Class"), which series of Certificates evidences the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting primarily of a
pool (the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this
[____% per annum][variable] Certificate as of the Issue Date:
$________________
Date of Pooling and Servicing Class Principal Balance of all Class
Agreement: June 1, 1998 [F][G][H][J][K][L] Certificates as of
the Issue Date:
$________________
Cut-off Date: June 1, 1998 Aggregate unpaid principal balance of
the Mortgage Pool as of the Cut-off
Issue Date: June 29, 1998 Date, after deducting payments of
principal due on or before such date
First Distribution Date: (the "Initial Pool Balance"):
$________________
July 20, 1998
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
CRIIMI MAE Services Limited Partnership State Street Bank and Trust Company
Mortgage Loan Seller: Additional Warranting Party:
Citicorp Real Estate, Inc. Morgan Guaranty Trust Company of
New York
Certificate No. _____________-___ CUSIP No. ____________
A-4-1
<PAGE>
[O CLASS F ONLY: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION
("DTC"), TO THE SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT
THEREOF 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.O]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
CAPITAL FUNDING, INC., CITICORP REAL ESTATE, INC., MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, STATE STREET BANK AND TRUST COMPANY, CRIIMI MAE SERVICES
LIMITED PARTNERSHIP, OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A-4-2
<PAGE>
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(A) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS CONSTITUTE
ENTITIES DESCRIBED IN SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. [O THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS JUNE 29, 1998. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (EXCEPT THAT
HYPER-AMORTIZATION LOANS (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN) ARE ASSUMED TO BE REPAID IN THEIR ENTIRETY ON THEIR
RESPECTIVE ANTICIPATED REPAYMENT DATES (ALSO AS DEFINED IN SUCH POOLING AND
SERVICING AGREEMENT)) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN
ISSUED WITH NO MORE THAN $__________ OF OID PER $__________ OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% PER ANNUM AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____
PER $_______ OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A
CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE THAT
THE MORTGAGE LOANS WILL NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY
PARTICULAR RATE. O]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that [o Class F only: Cede & Co. o] [o Classes G
through L only: ____________ o] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
Mortgage Capital Funding, Inc., as
A-4-3
<PAGE>
Sponsor, and the Mortgage Loan Seller, Additional Warranting Party, Master
Servicer, Special Servicer, Trustee and REMIC Administrator identified above.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 18th day of each month or, if such 18th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under
the Agreement in respect of this Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five (5) Business Days prior to the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
A-4-4
<PAGE>
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate or any interest herein shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. In the event a transfer of this
Certificate (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Sponsor or any Affiliate
of the Sponsor and other than if this Certificate constitutes a Book-Entry
Certificate) is to be made without registration under the Securities Act, then
the Certificate Registrar shall refuse to register such transfer until it
receives the following: (i) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit B-1 to
the Agreement and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit B-2 or Exhibit B-3 to
the Agreement; or (ii) an opinion of counsel satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which opinion of counsel shall not be an expense of
the Trust Fund or of the Sponsor, the Mortgage Loan Seller, the Additional
Warranting Party, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator or the Certificate Registrar in their respective capacities
as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
opinion of counsel is based. If this Certificate constitutes a Book-Entry
Certificate, and if any transfer of an interest herein is to be made without
registration under the Securities Act (other than in connection with the
initial issuance of the Certificates or a transfer of any interest in this
Certificate by the Sponsor or any of its Affiliates), then the Certificate
Owner desiring to effect such transfer shall be required to obtain either (A) a
certificate from such Certificate Owner's prospective transferee substantially
in the form attached as Exhibit B-4 or Exhibit B-5 to the Agreement or (B) an
opinion of counsel to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Fund or of the Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator or the Certificate Registrar in their
respective capacities as such). None of the Sponsor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class of
Certificates to which this Certificate belongs, under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of this Certificate or any interest herein
without registration or qualification. Any Holder or Certificate Owner of this
Certificate desiring to effect such a transfer
A-4-5
<PAGE>
shall be required to indemnify the Sponsor, the Trustee and the Certificate
Registrar against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
under any circumstances (i) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan") or (ii) to any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101, unless:
(x) if this Certificate or any interest herein is being acquired with "plan
assets", the prospective Transferee provides the Certificate Registrar (or, if
this Certificate constitutes a Book-Entry Certificate, the Certificate Owner
that desires to effect the transfer) with a certification to the effect that
the purchase, continued holding and transfer of this Certificate or such
interest herein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption ("PTCE") 95-60 or (y) if this
Certificate is held as a Definitive Certificate, the prospective transferee
provides the Certificate Registrar with a certification of facts and an opinion
of counsel, obtained at the expense of such prospective transferee, which
establish to the satisfaction of the Certificate Registrar that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code, will not result in the imposition of an excise tax under Section 4975 of
the Code and will not subject the Trustee, the Master Servicer or the Special
Servicer to any obligation in addition to those undertaken in the Agreement. It
is hereby acknowledged that the forms of certification attached to the
Agreement as Exhibit D-1 (in the case of Definitive Certificates) and Exhibit
D-2 (in the case of Book-Entry Certificates) are acceptable for the purposes of
the preceding sentence. Each Person who acquires this Certificate or any
interest herein without delivery of the certification of facts and opinion of
counsel referred to in the preceding two sentences shall be deemed to have
certified that it is neither a Plan nor any Person who is directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, or alternatively,
if and for so long as this Certificate constitutes a Book-Entry Certificate,
that the purchase, continued holding and transfer of this Certificate or such
interest herein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of PTCE
95-60.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[o For Class F only: For so long as this Certificate is registered in
the name of Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC. o]
A-4-6
<PAGE>
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents 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 Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The
Agreement permits, but does not require, any such Majority Certificateholder or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the
Master Servicer, the Special Servicer, the Trustee and the REMIC Administrator
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of REMIC I, REMIC II or REMIC III as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
A-4-7
<PAGE>
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated,
made and to be performed in said State, and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-4-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
State Street Bank and Trust Company,
as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F][G][H][J][K][L] Certificates referred to
in the within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-4-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Multifamily/ Commercial Mortgage Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to the above named
assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Multifamily/Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Multifamily/Commercial Mortgage
Pass-Through Certificate to the following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _______________________________
for the account of ____________________________________.
Distributions made by check (such check to be made payable to ________
________________________) and all applicable statements and notices should be
mailed to ______________________________________.
This information is provided by _________________________________, the
assignee named above, or ______________________________, as its agent.
A-4-10
<PAGE>
EXHIBIT A-5
FORM OF CLASS [R-I][R-II][R-III] CERTIFICATE
CLASS [R-I][R-II][R-III] MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-MC2
This is one of a series of multifamily/commercial mortgage pass-through
certificates (collectively, the "Certificates"), issued in multiple classes
(each, a "Class"), which series of Certificates evidences the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting primarily of a
pool (the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
MORTGAGE CAPITAL FUNDING, INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: June 1, 1998 Certificate in the related Class:
_____%
Cut-off Date: June 1, 1998 Aggregate unpaid principal balance of
the Mortgage Pool as of the Cut-off
Date, after deducting payments of
Issue Date: June 29, 1998 principal due on or before such date
(the "Initial Pool Balance"):
First Distribution Date: $___________
July 20, 1998
Master Servicer and Special Servicer: Trustee and REMIC Administrator:
CRIIMI MAE Services Limited Partnership State Street Bank and Trust Company
Mortgage Loan Seller: Additional Warranting Party:
Citicorp Real Estate, Inc. Morgan Guaranty Trust Company of New
York
Certificate No. [R-I][R-II][R-III] - __
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
CAPITAL FUNDING, INC., CITICORP REAL ESTATE, INC., MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, STATE STREET BANK AND TRUST COMPANY, CRIIMI MAE SERVICES
LIMITED PARTNERSHIP, OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
A-5-1
<PAGE>
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER").
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE
ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON
BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
A-5-2
<PAGE>
This certifies that _____________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Certificates of the same Class as this Certificate. The Trust Fund was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Mortgage Capital
Funding, Inc., as Sponsor, and the Mortgage Loan Seller, Additional Warranting
Party, Master Servicer, Special Servicer, Trustee and REMIC Administrator
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 18th day of each month or, if such 18th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under
the Agreement in respect of this Certificate will be made by the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five (5) Business Days prior to the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided
in the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-5-3
<PAGE>
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate or any interest herein shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. In the event a transfer of this
Certificate (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Sponsor or any Affiliate
of the Sponsor) is to be made without registration under the Securities Act,
then the Certificate Registrar shall refuse to register such transfer until it
receives the following: (i) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit B-1 to
the Agreement and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as Exhibit B-2 or Exhibit B-3 to
the Agreement; or (ii) an opinion of counsel satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which opinion of counsel shall not be an expense of
the Trust Fund or of the Sponsor, the Mortgage Loan Seller, the Additional
Warranting Party, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator or the Certificate Registrar in their respective capacities
as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
opinion of counsel is based. None of the Sponsor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class of
Certificates to which this Certificate belongs, under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of this Certificate or any interest herein
without registration or qualification. Any Certificateholder desiring to effect
such a transfer shall be required to indemnify the Sponsor, the Trustee, the
REMIC Administrator and the Certificate Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
under any circumstances (i) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan") or (ii) to any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with "plan assets" within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101, unless:
(x) if this Certificate or any interest herein is being acquired with "plan
assets", the prospective Transferee provides the Certificate Registrar with a
certification to the effect that the purchase, continued holding and transfer
of this Certificate or such interest herein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption ("PTCE")
95-60 or (y) the prospective transferee provides the Certificate Registrar with
a certification of facts and an opinion of counsel, obtained at
A-5-4
<PAGE>
the expense of such prospective transferee, which establish to the satisfaction
of the Certificate Registrar that such transfer will not result in a violation
of Section 406 of ERISA or Section 4975 of the Code, will not result in the
imposition of an excise tax under Section 4975 of the Code and will not subject
the Trustee, the Master Servicer or the Special Servicer to any obligation in
addition to those undertaken in the Agreement. It is hereby acknowledged that
the form of certification attached to the Agreement as Exhibit D-1 is
acceptable for the purposes of the preceding sentence. Each Person who acquires
this Certificate without delivery of the certification of facts and opinion of
counsel referred to in the preceding two sentences shall be deemed to have
certified that it is neither a Plan nor any Person who is directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to
negotiate the terms of any mandatory disposition and to execute all instruments
of transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest herein unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit C-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Trustee and the
REMIC Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such
A-5-5
<PAGE>
Ownership Interest, if it is, or is holding such Ownership Interest on behalf
of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the REMIC Administrator the following: (a) written notification
from each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee
and the REMIC Administrator, to the effect that such modification of, addition
to or elimination of such provisions will not (i) cause any of REMIC I, REMIC
II or REMIC III to (A) cease to qualify as a REMIC or (B) be subject to an
entity-level tax caused by the Transfer of a Residual Certificate to a Person
which is not a Permitted Transferee, or (ii) cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee that is not a Disqualified
Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code and (v) any other Person so designated by the REMIC
Administrator based upon an opinion of counsel that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under
the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
A-5-6
<PAGE>
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Additional Warranting
Party, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents 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 Sponsor, the Mortgage Loan Seller, the
Additional Warranting Party, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The
Agreement permits, but does not require, any such Majority Certificateholder or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator
thereunder and the rights of the Certificateholders thereunder, at any time by
the Sponsor, the Mortgage Loan Seller, the Additional Warranting Party, the
Master Servicer, the Special Servicer, the Trustee and the REMIC Administrator
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of REMIC I, REMIC II or REMIC III as
a REMIC, without the consent of the Holders of any of the Certificates.
A-5-7
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated,
made and to be performed in said State, and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-5-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
State Street Bank and Trust Company,
as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II][R-III] Certificates referred to
in the within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-5-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Multifamily/ Commercial Mortgage Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to the above named
assignee on the Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Multifamily/Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Multifamily/Commercial Mortgage
Pass-Through Certificate to the following address:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ___________________________
for the account of __________________________________.
Distributions made by check (such check to be made payable to ________
___________________________) and all applicable statements and notices should
be mailed to _________________________________________.
This information is provided by _______________________________, the
assignee named above, or _____________________________, as its agent.
A-5-10
<PAGE>
EXHIBIT B-1
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(b)
_____________, 19__
State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Mortgage Capital Funding Series 1998-MC2
Restricted Transfer Unit
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1998-MC2, Class ___, having an
initial aggregate Certificate Principal Balance as of June ___,
1998 (the "Closing Date") of $________________
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1998, among Mortgage Capital
Funding, Inc., as Sponsor, Citicorp Real Estate, Inc., as Mortgage Loan Seller,
Morgan Guaranty Trust Company of New York, as Additional Warranting Party,
CRIIMI MAE Services Limited Partnership, as Master Servicer and Special
Servicer and State Street Bank and Trust Company, as Trustee and REMIC
Administrator. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Non-Registered Certificate, any interest in a Non-Registered
Certificate or any other similar security to any person in any manner,
(b) solicited any offer to buy or accept a transfer, pledge or other
disposition of any Non-Registered Certificate, any interest in a
Non-Registered Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Non-Registered Certificate, any interest in a
Non-Registered Certificate or any other similar security with any
person in any manner, (d) made any general solicitation with respect
to any Non-Registered Certificate, any interest in a Non-Registered
Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other
B-1-1
<PAGE>
action with respect to any Non-Registered Certificate, any
interest in a Non-Registered Certificate or any other similar
security, which (in the case of any of the acts described in clauses
(a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended
(the "Securities Act"), would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities
Act or any state securities laws, or would require registration or
qualification of the Transferred Certificates pursuant to the
Securities Act or any state securities laws.
3. The Transferee is an entity which the Transferor reasonably
believes to be a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act, or an institutional
"accredited investor" (within the meaning of paragraphs (1), (2), (3)
or (7) of Rule 501(a) under the Securities Act).
Very truly yours,
-----------------------------------
(Transferor)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-1-2
<PAGE>
EXHIBIT B-2
FORM I OF TRANSFEREE CERTIFICATE
PURSUANT TO SECTION 5.02(b)
FOR TRANSFERS OF DEFINITIVE CERTIFICATES
[FOR QIBS]
_____________, 19__
State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Mortgage Capital Funding Series 1998-MC2
Restricted Transfer Unit
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1998-MC2, Class ______, having
an initial aggregate Certificate Principal Balance as of
June _, 1998 (the "Closing Date") of $__________
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1998, among Mortgage Capital
Funding, Inc., as Sponsor, Citicorp Real Estate, Inc., as Mortgage Loan Seller,
Morgan Guaranty Trust Company of New York, as Additional Warranting Party,
CRIIMI MAE Services Limited Partnership, as Master Servicer and Special
Servicer and State Street Bank and Trust Company, as Trustee and REMIC
Administrator. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act"), and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificates for its own
account or for the account of another Qualified Institutional Buyer,
and understands that such Transferred Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be
a Qualified Institutional Buyer that purchases for its own account or
for the account of another Qualified Institutional Buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the Securities Act.
B-2-1
<PAGE>
2. The Transferee has been furnished with all information
regarding (a) the Sponsor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of
the Mortgage Loans, (d) the Pooling and Servicing Agreement and the
Trust created pursuant thereto, (e) any credit enhancement mechanism
associated with the Transferred Certificates, and (f) all related
matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
-----------------------------------
(Transferor)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-2-2
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial
owner thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
-----------------------------------
(Nominee)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-2-3
<PAGE>
ANNEX 1 TO EXHIBIT B-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) the Transferee owned and/or invested on a discretionary
basis $______________________(1) in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
- --------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
B-2-4
<PAGE>
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority
having supervision over any such institutions, or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such
date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of
a state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1.)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
[Note: Notwithstanding the foregoing, if the Transferee constitutes a Qualified
Institutional Buyer soley because all of its equity owners are Qualified
Institutional Buyers, this paragraph 2 and paragraphs 3 and 4 should be
modified accordingly.]
3. The term "securities as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase
B-2-5
<PAGE>
agreement and (vii) currency, interest rate and commodity swaps. For purposes
of determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any of
the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities were
valued at market. Further, in determining such aggregate amount, the Transferee
may have included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the
Transferee is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
-----------------------------------
Print Name of Transferee
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Date:
---------------------------
B-2-6
<PAGE>
ANNEX 2 TO EXHIBIT B-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is
an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's
Family of Investment Companies owned, at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee's Family of Investment
Companies, the cost of such securities was used, unless the Transferee or any
member of the Transferee's Family of Investment Companies, as the case may be,
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of
those securities has been published, in which case the securities of such
entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
B-2-7
<PAGE>
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of
the Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
Print Name of Transferee or Adviser
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
IF AN ADVISER:
-----------------------------------
Print Name of Transferee
Date:
---------------------------
B-2-8
<PAGE>
EXHIBIT B-3
FORM II OF TRANSFEREE CERTIFICATE
PURSUANT TO SECTION 5.02(b)
FOR TRANSFERS OF DEFINITIVE CERTIFICATES
[FOR INSTITUTIONAL ACCREDITED INVESTORS]
_____________, 19__
State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Mortgage Capital Funding Series 1998-MC2
Restricted Transfer Unit
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1998-MC2, Class ________,
having an initial aggregate Certificate Principal Balance as of
June ___, 1998 (the "Closing Date") of $__________
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1998, among Mortgage Capital
Funding, Inc., as Sponsor, Citicorp Real Estate, Inc., as Mortgage Loan Seller,
Morgan Guaranty Trust Company of New York, as Additional Warranting Party,
CRIIMI MAE Services Limited Partnership, as Master Servicer and Special
Servicer and State Street Bank and Trust Company, as Trustee and REMIC
Administrator. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) neither the
Sponsor nor the Trustee is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in a transaction which is exempt from such registration and
qualification and the
B-3-1
<PAGE>
Certificate Registrar has received (A) a certificate from the prospective
transferor substantially in the form attached as Exhibit B-1 to the Pooling and
Servicing Agreement and a certificate from the prospective transferee
substantially in the form attached either as Exhibit B-2 or Exhibit B-3 to the
Pooling and Servicing Agreement or (B) an Opinion of Counsel satisfactory to
the Certificate Registrar that the transfer may be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding the transfer from the prospective transferor and/or
prospective transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates, any security issued in exchange therefor
or in lieu thereof or any interest in the foregoing except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates
will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"),
OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY
OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
ACCORDINGLY, THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING
OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN
B-3-2
<PAGE>
ENTITY IN WHICH ALL THE EQUITY OWNERS CONSTITUTE ENTITIES
DESCRIBED IN SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED
INVESTOR").
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept
a transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to
any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Sponsor, (b) the Transferred Certificates and distributions thereon,
(c) nature, performance and servicing of the Mortgage Loans, (d) the Pooling
and Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice
as it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
-----------------------------------
(Transferee)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Date:
---------------------------
B-3-3
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial
owner thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
-----------------------------------
(Nominee)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-3-4
<PAGE>
EXHIBIT B-4
FORM I OF TRANSFEREE CERTIFICATE
PURSUANT TO SECTION 5.02(b)
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY CERTIFICATES
[FOR QIBS]
____________, 19__
[TRANSFEROR]
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1998-MC2, Class __, having an
initial aggregate Certificate Principal Balance as of June ___,
1998 (the "Closing Date") of $_____________-
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to ___________________________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
which were issued pursuant to the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1998, among Mortgage Capital
Funding, Inc., as Sponsor, Citicorp Real Estate, Inc., as Mortgage Loan Seller,
Morgan Guaranty Trust Company of New York, as Additional Warranting Party,
CRIIMI MAE Services Limited Partnership, as Master Servicer and Special
Servicer and State Street Bank and Trust Company, as Trustee and REMIC
Administrator. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Sponsor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act") and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it of the Transferor's
interest in the Transferred Certificates is being made in reliance on Rule
144A. The Transferee is acquiring such interest in the Transferred Certificates
for its own account or for the account of another Qualified Institutional
Buyer.
B-4-1
<PAGE>
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Sponsor, the Trustee or the Certificate Registrar is obligated so to register
or qualify the Transferred Certificates and (c) no interest in the Transferred
Certificates may be resold or transferred unless (i) such Certificates are
registered pursuant to the Securities Act and registered or qualified pursuant
any applicable state securities laws, or (ii) such interest is sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received (A) a certificate from such Certificate Owner's prospective transferee
substantially in the form attached either as Exhibit B-4 or as Exhibit B-5 to
the Pooling and Servicing Agreement or (B) an opinion of counsel to the effect
that such transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the Transferred
Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"),
OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY
OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
ACCORDINGLY, THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
B-4-2
<PAGE>
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN
THE MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF
REGULATION D UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE
EQUITY OWNERS CONSTITUTE ENTITIES DESCRIBED IN SUCH PARAGRAPHS (AN
"INSTITUTIONAL ACCREDITED INVESTOR").
4. The Transferee has been furnished with all information regarding
(a) the Sponsor, (b) the Transferred Certificates and distributions thereon,
(c) the nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust created pursuant thereto, (e) any
credit enhancement mechanism associated with the Transferred Certificates, and
(f) all related matters, that it has requested.
Very truly yours,
-----------------------------------
(Transferee)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-4-3
<PAGE>
ANNEX 1 TO EXHIBIT B-4
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Mortgage Capital Funding, Inc. with
respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which
- --------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
B-4-4
<PAGE>
is supervised and examined by a state or federal authority
having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto, as of a date not more than
16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association
or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of
a state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it
qualifies. Note that registered investment companies should
complete Annex 2 rather than this Annex 1.)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
[Note: Notwithstanding the foregoing, if the Transferee constitutes a Qualified
Institutional Buyer soley because all of its equity owners are Qualified
Institutional Buyers, this paragraph 2 and paragraphs 3 and 4 should be
modified accordingly.]
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the
B-4-5
<PAGE>
aggregate amount of securities owned and/or invested on a discretionary basis
by the Transferee, the Transferee did not include any of the securities
referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities were
valued at market. Further, in determining such aggregate amount, the Transferee
may have included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the
Transferee is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Transferee may be in reliance on Rule
144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
-----------------------------------
Print Name of Transferee
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Date:
---------------------------
B-4-6
<PAGE>
ANNEX 2 TO EXHIBIT B-4
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Mortgage Capital Funding, Inc. with
respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is
an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
B-4-7
<PAGE>
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of
the Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
-----------------------------------
Print Name of Transferee or Adviser
By:
--------------------------------
Name:
Title:
IF AN ADVISER:
-----------------------------------
Print Name of Transferee
Date:
------------------------------
B-4-8
<PAGE>
EXHIBIT B-5
FORM II OF TRANSFEREE CERTIFICATE
PURSUANT TO SECTION 5.02(b)
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY CERTIFICATES
[FOR INSTITUTIONAL ACCREDITED INVESTORS]
____________, 19__
[TRANSFEROR]
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1998-MC2, Class __, having an
initial aggregate Certificate Principal Balance as of June___,
1998 (the "Closing Date") of $_____________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to __________________________________
(the "Transferee") through our respective Depository Participants of the
Transferor's beneficial ownership interest (currently maintained on the books
and records of The Depository Trust Company ("DTC") and the Depository
Participants) in the captioned Certificates (the "Transferred Certificates"),
which were issued pursuant to the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 1998, among Mortgage Capital
Funding, Inc., as Sponsor, Citicorp Real Estate, Inc., as Mortgage Loan Seller,
Morgan Guaranty Trust Company of New York, as Additional Warranting Party,
CRIIMI MAE Services Limited Partnership, as Master Servicer and Special
Servicer and State Street Bank and Trust Company, as Trustee and REMIC
Administrator. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Sponsor, that:
1. The Transferee is acquiring the Transferor's beneficial ownership
interest in the Transferred Certificates for its own account for investment and
not with a view to or for sale or transfer in connection with any distribution
thereof, in whole or in part, in any manner which would violate the Securities
Act of 1933, as amended (the "Securities Act"), or any applicable state
securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Sponsor, the Trustee or the Certificate Registrar is obligated so to register
or qualify the Transferred Certificates, and (c) no interest in the Transferred
Certificates may be resold or transferred unless (i) such Certificates are
registered pursuant to the Securities Act and registered or qualified pursuant
any applicable state securities laws, or (ii) such interest is sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received (A) a certificate from such Certificate
B-5-1
<PAGE>
Owner's prospective transferee substantially in the form attached either as
Exhibit B-4 or as Exhibit B-5 to the Pooling and Servicing Agreement or (B) an
opinion of counsel to the effect that such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the Transferred
Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"),
OR (B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY
OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
ACCORDINGLY, THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING
OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS
CONSTITUTE ENTITIES DESCRIBED IN SUCH PARAGRAPHS (AN "INSTITUTIONAL
ACCREDITED INVESTOR").
B-5-2
<PAGE>
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept
a transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to
any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or
any other similar security, which (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Transferred Certificates,
any interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Sponsor, (b) the Transferred Certificates and distributions thereon,
(c) the nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement and the Trust created pursuant thereto, (e) any
credit enhancement mechanism associated with the Transferred Certificates, and
(f) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
-----------------------------------
(Transferee)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-5-3
<PAGE>
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Mortgage
Capital Funding, Inc., Class R-[I][II][III] Multifamily/Commercial Mortgage
Pass-Through Certificate, Series 1998-MC2, evidencing a ____% Percentage
Interest in the Class to which it belongs (the "Residual Certificate")), a
__________________________________ duly organized and validly existing under
the laws of [the State of ____] [the United States], on behalf of which he/she
makes this affidavit. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Residual Certificate was issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is [and, as of [date of transfer], will be] a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificate, and (ii) is acquiring the
Residual Certificate for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any person other
than a "disqualified organization" or a "non-United States person". (For this
purpose: (i) a "disqualified organization" means the United States or a
possession thereof, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home
Loan Mortgage Corporation, a majority of whose board of directors is not
selected by any such governmental entity) or any foreign government,
international organization or any agency or instrumentality of such foreign
government or organization, any rural electric or telephone cooperative, or any
organization (other than certain farmers' cooperatives) that is generally
exempt from federal income tax (unless such organization is subject to the tax
on unrelated business taxable income); and (ii) a "non-United States person" is
any person other than a "United States person". A "United States person" is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in, or under the laws of, the United States or any
political subdivision thereof, or an estate whose income from sources without
the United States is includable in gross income for United States federal
income tax purposes regardless of its connection with the conduct of a trade or
business within the United States, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.)
C-1-1
<PAGE>
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificate to "disqualified organizations" under the
Internal Revenue Code of 1986, as amended, that applies to all transfers of the
Residual Certificate after March 31, 1988; (ii) that such tax would be on the
transferor, or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a "disqualified organization", on the agent;
(iii) that the person otherwise liable for the tax shall be relieved of
liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a "disqualified organization" and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificate may be a "non-economic residual
interest" within the meaning of Treasury Regulation ss.1.860E-1(c) and that the
transferor of a "non-economic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificate if at any time during the taxable year
of the pass-through entity a "disqualified organization" is the record holder
of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificate by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Residual Certificate
will only be owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is ______________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificate (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Certificate to a person other than the Transferee and clause (ii)(B) of Section
5.02(d) which authorizes the Trustee to negotiate a mandatory disposition of
the Residual Certificate, in either case, in the event that the Transferee
holds such Residual Certificate in violation of Section 5.02(d)); and the
Transferee expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificate is or will be to impede the assessment or
collection of any tax.
C-1-2
<PAGE>
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
11. The Transferee will, in connection with any transfer that it makes
of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificate to impede the
assessment or collection of any tax and that it has at the time of such
transfer conducted a reasonable investigation of the financial condition of the
proposed transferee as contemplated by Treasury Regulation ss.1.860E-1(c)(4)(i)
and has satisfied the requirements of such provision.
C-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 199__.
[NAME OF TRANSFEREE]
By:
-------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
- ------------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
Subscribed and sworn before me this ___ day of ______________, 199__.
----------------------------------
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________ day of _____________, 19__.
C-1-4
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 19___
State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Mortgage Capital Funding Series 1998-MC2
Restricted Transfer Unit
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1998-MC2, Class
R-[I][II][III], evidencing a ___% Percentage Interest in the
Class to which it belongs
Dear Sirs:
This letter is delivered to you in connection with the transfer by
__________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Class R- [I][II][III] Certificate (the "Residual
Certificate"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of April 1, 1998, among
Mortgage Capital Funding, Inc., as Sponsor, Citicorp Real Estate, Inc., as
Mortgage Loan Seller, Mortgage Guaranty Trust Company of New York, as
Additional Warranting Party, CRIIMI MAE Services Limited Partnership, as Master
Servicer and as Special Servicer, and State Street Bank and Trust Company, as
Trustee and REMIC Administrator. All terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificate by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit C-1. The Transferor does not know or believe
that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulation ss.1.860E-1(c)(4)(i) and, as a result of
that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence
C-2-1
<PAGE>
to indicate that the Transferee will not continue to pay its debts as they
become due in the future. The Transferor understands that the transfer of the
Residual Certificate may not be respected for United States income tax purposes
(and the Transferor may continue to be liable for United States income taxes
associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
-----------------------------------
(Transferor)
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
C-2-2
<PAGE>
EXHIBIT D-1
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE CERTIFICATES)
__________, 1998
State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Mortgage Capital Funding Series 1998-MC2
Restricted Transfer Unit
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1998-MC2, Class ____________,
having an initial aggregate Certificate Principal Balance as of
June ___, 1998 (the "Closing Date") of $________________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
__________________________ (the "Transferor") to
____________________________________ (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), which were issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of June 1, 1998, among Mortgage Capital Funding, Inc., as Sponsor,
Citicorp Real Estate, Inc., as Mortgage Loan Seller, Morgan Guaranty Trust
Company of New York, as Additional Warranting Party, CRIIMI MAE Services
Limited Partnership, as Master Servicer and Special Servicer, and State Street
Bank and Trust Company, as Trustee and REMIC Administrator. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you as Certificate Registrar, as follows
(check the applicable paragraph):
___ The Transferee is neither (A) an employee benefit plan or other
retirement arrangement, including an individual retirement account or
annuity, a Keogh plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
that is subject to ERISA or the Code (each, a "Plan"), nor (B) a
Person who is directly or indirectly purchasing the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan; or
D-1-1
<PAGE>
___ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the purchase
and holding of such Certificates by such Person is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or
___ As otherwise set forth in the certification of facts and opinion of
counsel attached hereto as Annex A, the purchase and holding of the
Transferred Certificates by the Transferee will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code, will
not result in the imposition of an excise tax under Section 4975 of
the Code and will not subject the Trustee, the Master Servicer or the
Special Servicer to any obligation in addition to those undertaken in
the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------
(Transferee)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY CERTIFICATES)
__________, 1998
[TRANSFEROR]
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1998-MC2, Class ___________,
having an initial aggregate Certificate Principal Balance as of
June ___, 1998 (the "Closing Date") of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to
____________________________________ (the "Transferee") through our respective
Depository Participants of the Transferor's beneficial ownership interest
(currently maintained in the books and records of the Depository Trust Company
("DTC") and the Depository Participants) in the captioned Certificates (the
"Transferred Certificates"), which were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of June
1, 1998, among Mortgage Capital Funding, Inc., as Sponsor, Citicorp Real
Estate, Inc., as Mortgage Loan Seller, Morgan Guaranty Trust Company of New
York, as Additional Warranting Party, CRIIMI MAE Services Limited Partnership,
as Master Servicer and Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to and agrees with you, and for the benefit of the Sponsor, as
follows (check the applicable paragraph):
___ The Transferee is neither (A) an employee benefit plan or other
retirement arrangement, including an individual retirement account or
annuity, a Keogh plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
that is subject to ERISA or the Code (each, a "Plan"), nor (B) a
Person who is directly or indirectly purchasing an interest in the
Transferred Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or
D-2-1
<PAGE>
___ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person is
exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
Very truly yours,
----------------------------------
(Transferee)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
D-2-2
<PAGE>
EXHIBIT E
REQUEST FOR RELEASE
____________________, 19___
State Street Bank and Trust Company
225 Franklin Street - MCO
Boston, Massachusetts 02110
Attention: Mortgage Custody Department/Release Area
Mortgage Capital Funding Series 1998-MC2
In connection with the administration of the Mortgage Files held by or
on behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of June 1, 1998 (the "Pooling and Servicing Agreement"), by and among
Mortgage Capital Funding, Inc., as Sponsor, Citicorp Real Estate, Inc., as
Mortgage Loan Seller, Morgan Guaranty Trust Company of New York, as Additional
Warranting Party, CRIIMI MAE Services Limited Partnership, as Master Servicer
and Special Servicer, and you, as Trustee and REMIC Administrator, the
undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
-----------------------------------------------------
Address:
--------------------------------------------------------------
Loan No.:
-------------------------------------------------------------
If only particular documents in the Mortgage File are requested, please specify
which:
-------------------------------------------------------------------------
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies that
all amounts received in connection with the Mortgage Loan that
are required to be credited to the Collection Account pursuant to
the Pooling and Servicing Agreement, have been or will be so
credited.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
E-1
<PAGE>
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER] [SPECIAL SERVICER]
By:
---------------------------------
Name:
----------------------------
Title:
E-2
<PAGE>
EXHIBIT F
FORM OF DISTRIBUTION DATE STATEMENT
F-1
<PAGE>
<TABLE>
<CAPTION>
[STATE STREET LOGO]
MORTGAGE CAPITAL FUNDING, INC. W.A.C.
MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES W.A.M.
SERIES 1998-MC2 PAYMENT DATE
RECORD DATE
TRUSTEE'S REPORT TO CERTIFICATEHOLDERS
PAYMENT SUMMARY
- ----------------------------------------------------------------------------------------------------------------------------
Current
Pass-Through Interest Moody's/Fitch Original Beginning Principal Interest Total Ending
Class CUSIP Rate Type Rating Balance Balance Paid Paid Paid Balance
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
TOTALS:
--------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
DISTRIBUTIONS PER CERTIFICATE
- ------------------------------------------------------------------------------------------
Beginning Principal Interest Ending
Class Certificate Factor Distribution Distribution Certificate Factor
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------
For additional information or with questions, please contact:
- -------------------------------------------------------------------------
STATE STREET CORPORATE TRUST
- -------------------------------------------------------------------------
Bond Analyst:
Account Officer:
Street Connection:(factor and rate by cusip) (617) 664-5500
To receive current or historical reports for this deal please use:
Website: http://CorporateTrust.StateStreet.com
Street Fax:Bondholder & Secondary Market Reports (617) 664-5600
- -------------------------------------------------------------------------
STATE STREET
Serving Institutional Investors Worldwide
- -------------------------------------------------------------------------------
This report has been prepared by or based on information furnished to State
Street Bank and Trust Company ("State Street") by one or more third parties
(e.g.,Servicer, Master Servicer, etc.). State Street shall not have and does
not undertake responsibility for the accuracy or completeness of information
provided by such third parties, and makes no representations or warranties with
respect to the accuracy or completeness thereof or the sufficiency thereof for
any particular purpose. State Street has not independently verified information
received from third parties, and shall have no liability for any inaccuracies
therein or caused thereby.
1
<PAGE>
<TABLE>
<CAPTION>
[STATE STREET LOGO]
MORTGAGE CAPITAL FUNDING, INC. W.A.C.
MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES W.A.M.
SERIES 1998-MC2 PAYMENT DATE
RECORD DATE
TRUSTEE'S REPORT TO CERTIFICATEHOLDERS
Principal Detail
- ----------------------------------------------------------------------------------------------------------------------------
Other Total
Principal Principal Realized Cumulative Cumulative
Beginning Scheduled Unscheduled Cash Distribution losses/ Appraisal Ending Realized Appraisal
Class Balance Principal Principal Adjustments Amount Balance Adj. Reduction Amt. Balance losses Reduction
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------
TOTALS:
-----------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
INTEREST DETAIL
- --------------------------------------------------------------------------------------------------------------------------------
Accrued Beg. Prepayment Current Additional
Certificate Unpaid Int. Interest Trust Prepayment Additional Total Interest Cumulative Unpaid
Class Interest Interest Shortfall Shortfalls Fund Expenses Premiums Adjustments Distr. Amount Interest Shortfall
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
TOTALS:
------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
[STATE STREET LOGO]
MORTGAGE CAPITAL FUNDING, INC. W.A.C.
MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES W.A.M.
SERIES 1998-MC2 PAYMENT DATE
RECORD DATE
TRUSTEE'S REPORT TO CERTIFICATEHOLDERS
BOND CLASS RATING, SUBORDINATION LEVEL AND MATURITIES:
---------------------------------------------------------------------------------------------------------------
Ratings Original Current Last Original Current Orig. Class Maturity
Class As Of Date Rating Rating Rating Subordination Level Sub.Level at 0% CPR
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------
DELINQUENCIES One Month Two Months Three+Months Foreclosures Total
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
# of Loans 0 0 0 0 0
-------------------------------------------------------------------------------------------------------
Ending APB $0.00 $0.00 $0.00 $0.00 $0.00
-------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
TWELVE MONTH SUMMARY OF PREPAYMENTS AND PREPAYMENT PENALTIES:
-------------------------------------------------------------
MONTH/YEAR PREPAYMENTS PENALTIES
---------- ----------- ---------
<S> <C> <C>
-------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Current Cum.
APPRAISAL REDUCTIONS: Total Total
--------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Loan # 0 0 0 0 0 0
--------------------------------------------------------------------------
Amount $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
--------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
[STATE STREET LOGO]
MORTGAGE CAPITAL FUNDING, INC. W.A.C.
MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES W.A.M.
SERIES 1998-MC2 PAYMENT DATE
RECORD DATE
TRUSTEE'S REPORT TO CERTIFICATEHOLDERS
OTHER INFORMATION
============================================================================================================================
AVAILABLE DISTRIBUTION AMOUNT:
COLLATERAL INFORMATION: CLOSING BEG ENDING
COLL. BALANCE COLL. BALANCE COLL. BALANCE
------------- ------------- -------------
<S> <C> <C> <C>
LOAN COUNT
Aggregate amount of P&I Advances made during current period:
SERVICING FEES:
Aggregate Amount of servicing compensation paid to Master Servicer:
Aggregate Amount of servicing compensation paid to Trustee:
Additional Special Servicing Fee:
AGGREGATE AMOUNT OF:
Additional Trust Fund Expenses:
Mortgage Loans that have been paid in full:
Mortgage Loans that have been paid at their Maturity Date:
Prepayment Penalties paid on the Mortgage Loans:
============================================================================================================================
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. STATE STREET CORPORATE TRUST
MULTIFAMILY/COMMERCIAL MORTGAGE WEB: CORPORATETRUST.STATESTREET.COM
PASS-THROUGH CERTIFICATES PAYMENT DATE
SERIES 1998-MC2 REPORT #
DISTRIBUTION OF CURRENT SCHEDULED PRINCIPAL BALANCES
- --------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------
Current Weighted Averages
Scheduled # of Aggregate % Tot ---------------------------------
Principal Mtg Sched Prin Sched Mnths Mort
Balance Loans Balance Bal DSCR to Mat Rate
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
less than 1,000,000.00
1,000,000.00+
2,000,000.00+
3,000,000.00+
4,000,000.00+
5,000,000.00+
5,999,999.91+
7,000,000.00+
8,000,000.00+
9,000,000.00+
10,000,000.00+
15,000,000.00+
20,000,000.00+
- --------------------------------------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------------------------------------
</TABLE>
DISTRIBUTION OF CURRENT MORTGAGE INTEREST RATES
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------
Current Weighted Averages
Mortgage # of Aggregate % Tot ---------------------------------
Interest Mtg Sched Prin Sched Mnths Mort
Rate Loans Balance Bal DSCR to Mat Rate
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
less than 8.50%
8.50% +
8.75% +
9.00% +
9.25% +
9.50% +
9.75% +
10.00% +
10.25% +
- --------------------------------------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------------------------------------
</TABLE>
DISTRIBUTION OF TOP TEN STATES BY BALANCE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Weighted Averages
Top # of Aggregate % Tot ---------------------------------
10 Mtg Sched Prin Sched Mnths Mort
States Loans Balance Bal DSCR to Mat Rate
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Texas
California
Florida
New York
New Jersey
Ohio
Pennsylvania
Oregon
Nevada
North Carolina
Other
- ----------------------------------------------------------------------------------------------------
Total
- ----------------------------------------------------------------------------------------------------
</TABLE>
DISTRIBUTION OF PROPERTY TYPE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Weighted Averages
# of Aggregate % Tot ---------------------------------
Property Mtg Sched Prin Sched Mnths Mort
Types Loans Balance Bal DSCR to Mat Rate
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Multi-Family
Anchored Retail
Hospitality
Office
Industrial
Unanchored Retail
Health Care
Mobile Home Park
Mixed
- ----------------------------------------------------------------------------------------------------
Total
- ----------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. STATE STREET CORPORATE TRUST
MULTIFAMILY/COMMERCIAL MORTGAGE WEB: CORPORATETRUST.STATESTREET.COM
PASS-THROUGH CERTIFICATES PAYMENT DATE
SERIES 1998-MC2 REPORT #
DISTRIBUTION OF REMAINING STATED TERM (BALLOON LOANS ONLY)
- ------------------------------------------------------------------------------------------
-------------------------------------------------------------------
Remaining Weighted Averages
Stated # of Aggregate % Tot --------------------------------
Term Mtg Sched Prin Sched Mnths Mort
(Months) Loans Balance Bal DSCR to Mat Rate
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
less than 60
60+
96+
132+
180+
240+
- -------------------------------------------------------------------------------------------
Total
- -------------------------------------------------------------------------------------------
</TABLE>
DIST. OF REMAINING STATED TERM (FULLY AMORTIZING LOANS ONLY)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
-------------------------------------------------------------------
Remaining Weighted Averages
Stated # of Aggregate % Tot --------------------------------
Term Mtg Sched Prin Sched Mnths Mort
(Months) Loans Balance Bal DSCR to Mat Rate
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
less than 60
60+
96+
132+
180+
240+
- ------------------------------------------------------------------------------------------
Total
- ------------------------------------------------------------------------------------------
</TABLE>
DISTRIBUTION OF REMAINING STATED TERM (ALL LOANS)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
-------------------------------------------------------------------
Remaining Weighted Averages
Stated # of Aggregate % Tot --------------------------------
Term Mtg Sched Prin Sched Mnths Mort
(Months) Loans Balance Bal DSCR to Mat Rate
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0+
60+
96+
132+
180+
240+
- ------------------------------------------------------------------------------------------
Total
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
DISTRIBUTION OF REMAINING AMORTIZATION TERM
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Weighted Averages
Original # of Aggregate % Tot ---------------------------------
Amortization Mtg Sched Prin Sched Mnths Mort
Term Loans Balance Bal DSCR to Mat Rate
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
less than 60
60+
120+
180+
240+
300+
360+
- -------------------------------------------------------------------------------------------
Total
- -------------------------------------------------------------------------------------------
</TABLE>
DISTRIBUTION OF SEASONING
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
Weighted Averages
# of Aggregate % Tot ---------------------------------
Seasoning Mtg Sched Prin Sched Mnths Mort
(months) Loans Balance Bal DSCR to Mat Rate
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
less than 13
13-24
25-36
37-48
49-60
61-120
121+
- ------------------------------------------------------------------------------------------------
Total
- ------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. STATE STREET CORPORATE TRUST
MULTIFAMILY/COMMERCIAL MORTGAGE WEB: CORPORATETRUST.STATESTREET.COM
PASS-THROUGH CERTIFICATES PAYMENT DATE
SERIES 1998-MC2 REPORT #
DISTRIBUTION OF ORIGINAL TERM TO STATED MATURITY
- -------------------------------------------------------------------------------------------
Weighted Averages
Original # of Aggregate % Tot ---------------------------------
Term to Mtg Sched Prin Sched Mnths Mort
Maturity Loans Balance Bal DSCR to Mat Rate
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
0+
50+
100+
150+
200+
250+
300+
400+
- -------------------------------------------------------------------------------------------
Total
- -------------------------------------------------------------------------------------------
</TABLE>
DISTRIBUTION OF LOAN TO VALUE RATIO
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Weighted Averages
Most # of Aggregate % Tot ---------------------------------
Recent Mtg Sched Prin Sched Mnths Mort
LTV Loans Balance Bal DSCR to Mat Rate
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Not Populated
Less than 50.01
50.01+
55.01+
60.01+
65.01+
70.01+
75.01+
80.01+
- -------------------------------------------------------------------------------------------
Total
- -------------------------------------------------------------------------------------------
</TABLE>
DISTRIBUTION OF AMORTIZATION TYPE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Weighted Averages
# of Aggregate % Tot ---------------------------------
Amortization Mtg Sched Prin Sched Mnths Mort
Type Loans Balance Bal DSCR to Mat Rate
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Amortizing Balloon
Fully Amortizing
- -------------------------------------------------------------------------------------------
Total
- -------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
DISTRIBUTION OF MOST RECENT DEBT SERVICE COVERAGE RATIO
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Weighted Averages
# of Aggregate % Tot ---------------------------------
Mtg Sched Prin Sched Mnths Mort
DSCR Loans Balance Bal DSCR to Mat Rate
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Not populated
less than 1.20x
1.20x+
1.25x+
1.30x+
1.35x+
1.40x+
1.45x+
1.50x+
1.55x+
1.60x+
1.70x+
1.80x+
- -------------------------------------------------------------------------------------------
Total
- -------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
DEAL NAME: MORTGAGE CAPITAL FUNDING, INC STATE STREET CORPORATE TRUST
MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES WEB: CORPORATETRUST.STATESTREET.COM
SERIES 1998-MC2 PAYMENT DATE
REPORT
LOAN LEVEL DETAIL
---------------------- -------------------------------------------------------------------------
CLOSING TERMS CURRENT TERMS
- --------------------------------------------------------------------------------------------------------------------------------
Offer Prepay/ Paid
Control Property Sched Note Maturity Sched Note Maturity Sched Liquid/ Prepay Thru Prepmt Transfer Loan
# Type City State Bal Rate Date Bal Rate Date P&I adj Date Date Premium Date Status
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
totals
- --------------------------------------------------------------------------------------------------------------------------------
Loan Status:
A = Payment not rec'd. but still in grace period, B = Late payment, but less than 1 mo., O = Current, 1 = 1 mo. delinquent,
2 = 2mo. delinquent, 3 = Three or more mo. delinquent
4 = Assumed scheduled payment (performing matured balloon), 7 = Foreclosure, 9 = REO
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
DEAL NAME: MORTGAGE CAPITAL FUNDING, INC STATE STREET CORPORATE TRUST
MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES WEB: CORPORATETRUST.STATESTREET.COM
SERIES 1998-MC2 PAYMENT DATE
REPORT
SPECIALLY SERVICED LOAN DETAIL HISTORY
- --------------------------------------------------------------------------------------------------------------------------------
Offer Transfer Actual Maturity Prop Spec Serv
Control # Date Prin Bal Date Type State NOI NOI Date DSCR Status Code*
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<FN>
- --------------------------------------------------------------------------------------------------------------------------------
* LEGEND
- --------
1 = Request for waiver of Prepayment Penalty 4 = Loans with Borrower Bankruptcy 7 = Loan Paid Off
2 = Payment Default 5 = Loans in Process of Foreclosure 8 = Loans Returned to Master Servicer
3 = Request for Loan Modification or Workout 6 = Loans now REO Property
- --------------------------------------------------------------------------------------------------------------------------------
</FN>
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
DEAL NAME: MORTGAGE CAPITAL FUNDING, INC STATE STREET CORPORATE TRUST
MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES WEB: CORPORATETRUST.STATESTREET.COM
SERIES 1998-MC2 PAYMENT DATE
REPORT
DELINQUENCY/PREPAYMENT REPORTING HISTORY: ROLLING 24 MONTHS
- --------------------------------------------------------------------------------------------------------------------------
Delinq Delinq Delinq Foreclosure/ Specially
1 Month 2 Month 3+ Month Bank REO Modifications Serviced Prepayments
Dist ------------------------------------------------------------------------------------------------------------------
Date # Bal # Bal # Bal # Bal # Bal # Bal # Bal # Bal
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE>
EXHIBIT G-1
FORM OF DELINQUENT LOAN STATUS REPORT
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC2
DELINQUENT LOAN STATUS REPORT
as of _____________
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID SHORT NAME (WHEN APPROPRIATE) PROPERTY TYPE CITY STATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID SQ FT OR UNITS PAID THRU DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID SCHEDULED LOAN BALANCE TOTAL P&I ADVANCES TO DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID TOTAL EXPENSES TO DATE OTHER ADVANCES (TAXES & ESCROW)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID TOTAL EXPOSURE CURRENT MONTHLY P&I
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID CURRENT INTEREST RATE MATURITY DATE LTM NOI DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
***CAP VALUE USING
RATE NOI & CAP
PROSPECTUS ID LTM NOI LTM DSCR ASSIGNED RATE VALUATION DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
APPRAISAL
BPO OR
PROSPECTUS ID INTERNAL VALUE** LOSS USING 90% APPR. OR BPO (F)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
TOTAL
APPRAISAL
REDUCTION TRANSFER RESOLUTION
PROSPECTUS ID ESTIMATED RECOVERY % REALIZED DATE DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID FCL START DATE EXPECTED FCL SALE DATE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
<PAGE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ID WORKOUT STRATEGY COMMENTS
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
FCL - FORECLOSURE
LTM - LATEST 12 MONTHS EITHER LAST ANNUAL OR TRAILING 12 MONTHS
- -------------------------------------------------------------------------------
*WORKOUT STRATEGY SHOULD MATCH THE CSSA LOAN FILE USING ABREVIATED WORDS IN
PLACE OF A CODE NUMBER SUCH AS (FCL - IN FORECLOSURE, MOD - MODIFICATION, DPO -
DISCOUNT PAYOFF, NS - NOTE SALE, BK - BANKRUPCY, PP - PAYMENT PLAN, TBD - TO BE
DETERMINED ETC...)
IT IS POSSIBLE TO COMBINE THE STATUS CODES IF THE LOAN IS GOING IN MORE THAN
ONE DIRECTION. (I.E. FCL/MOD, BK/MOD, BK/FCL/DPO)
**APP - APPRAISAL, BPO - BROKER OPINION, INT. - INTERNAL VALUE
***HOW TO DETERMINE THE CAP RATE IS AGREED UPON BY UNDERWRITER AND SERVICERS -
TO BE PROVIDED BY A THIRD PARTY.
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-2
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC2
HISTORICAL LOAN MODIFICATION REPORT
AS OF _______________
- ---------------------------------------------------------------------------------------------------------------------
BALANCE
WHEN SENT # MTHS
MOD/ TO BALANCE AT THE FOR
PROSPECTUS EXTENTION EFFECT SPEICAL EFFECTIVE DATE OF OLD RATE NEW
ID CITY STATE FLAG DATE SERVICER REHABILITATION RATE CHANGE RATE OLD P&I
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------
(2) EST.
FUTURE
TOTAL # INTEREST
MTHS (1) LOSS TO
FOR REALIZED TRUST $
OLD NEW CHANGE LOSS TO (RATE
NEW P&I MATURITY MATURITY OF MOD TRUST $ REDUCTION) COMMENT
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
Information is as of modification each line it should not change in the future
only new modifications should be added.
- --------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
TOTAL FOR LOANS IN CURRENT MONTH:
# OF LOANS $ BALANCE
MODIFICATIONS:
MATURITY DATE EXTENTIONS:
-------------------------------------------------------------------
TOTAL:
* The information in these columns is from a particular point in time and
should not change on this report once assigned.
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
</TABLE>
<PAGE>
EXHIBIT G-3
FORM OF HISTORICAL LOSS REPORT
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC2
HISTORICAL LOSS ESTIMATE REPORT
AS OF _______________
- ------------------------------------------------------------------------------------------------------------------------------
LATEST
SHORT NAME % APPRAISAL EFFECT NET AMT
PROSPECTUS (WHEN PROPERTY RECEIVED OR BROKERS DATE OF RECEIVED SCHEDULED
ID APPROPRIATE) TYPE CITY STATE FROM SALE OPINION SALE SALES PRICE FROM SALE BALANCE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
DATE DATE MINOR
LOSS ADJ TOTAL LOSS LOSS % OF
TOTAL P&I TOTAL SERVICING ACTUAL LOSSES PASSED MINOR ADJ PASSED WITH SCHEDULED
ADVANCED EXPENSES FEES EXPENSE NET PROCEEDS PASSED THRU THRU TO TRUST THRU ADJUSTMENT BALANCE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
- ------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT G-4
FORM OF REO STATUS REPORT
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC2
REO STATUS REPORT
AS OF _______________
- -----------------------------------------------------------------------------------------------------
SHORT NAME SQ FT PAID SCHEDULED TOTAL P&I TOTAL
(WHEN PROPERTY OR THRU LOAN ADVANCES EXPENSES
PROSPECTUS ID APPROPRIATE) TYPE CITY STATE UNITS DATE BALANCE TO DATE TO DATE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------
OTHER VALUE APPRAISAL
ADVANCES CURRENT LTM CAP USING BPO OR
(TAXES & TOTAL MONTHLY MATURITY NOI LTM NOI RATE VALUATION NOI & INTERNAL
ESCROW) EXPOSURE P&I DATE DATE /DSC ASSIGN*** DATE CAP RATE VALUE**
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------
LOSS TOTAL
USING APPRAISAL REO PENDING
92% APPR. ESTIMATED REDUCTION TRANSFER AQUISITION RESOULTION PENDING
OR BPO (F) RECOVERY % REALIZED DATE DATE DATE OFFERS COMMENTS
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
*** How to determine the cap rate is agreed upon by Underwriter and servicers -
to be provided by a third party
<PAGE>
EXHIBIT G-5
FORM OF SPECIAL SERVICER LOAN STATUS REPORT
<PAGE>
ASSETS UNDER REVIEW 1=MultiFamily 4=Retail 7=Mobile Home Park
Status Report 2=Hotel 5=LI. Indus. 8=Nursing Home
3=Office 6=Dis. Warhs. 9=Storage Facility
10=Other
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Borrower Name Borrower's Net Cash Flow Scheduled
Prop CRIIMI# Project Name Loan Bal. As of Date P&I Pymt.
Type Mstr-Svcr# Project Facts Last Pd Install Most Recent DSC Pd. Thru Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Potential Issues
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Advances
Prop Cumulative Cumulative Mstr.Svcr/CMSLP Default Interest Other
Type Principal Interest Scheduled UPB Earned To Date Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
Last Update: 20-Mar-98
Cutoff Date: 05-May-99
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Site Inspec.
Prop Spec. Serv. Fee Reimburseable Expenses Date
Type Cumulative Amt. Description Amt. Date Condition
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
ASSETS UNDER REVIEW 1=MultiFamily 4=Retail 7=Mobile Home Park
Status Report 2=Hotel 5=LI. Indus. 8=Nursing Home
3=Office 6=Dis. Warhs. 9=Storage Facility
10=Other
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Borrower Name Borrower's Net Cash Flow Scheduled
Prop CRIIMI# Project Name Loan Bal. As of Date P&I Pymt.
Type Mstr-Svcr# Project Facts Last Pd Install Most Recent DSC Pd. Thru Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Monetary Default
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Advances
Prop Cumulative Cumulative Mstr.Svcr/CMSLP Default Interest Other
Type Principal Interest Scheduled UPB Earned To Date Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
Last Update: 20-Mar-98
Cutoff Date: 05-May-99
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Site Inspec.
Prop Spec. Serv. Fee Reimburseable Expenses Date
Type Cumulative Amt. Description Amt. Date Condition
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
ASSETS UNDER REVIEW 1=MultiFamily 4=Retail 7=Mobile Home Park
Status Report 2=Hotel 5=LI. Indus. 8=Nursing Home
3=Office 6=Dis. Warhs. 9=Storage Facility
10=Other
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Borrower Name Borrower's Net Cash Flow Scheduled
Prop CRIIMI# Project Name Loan Bal. As of Date P&I Pymt.
Type Mstr-Svcr# Project Facts Last Pd Install Most Recent DSC Pd. Thru Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Covenant Default
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
Assigned Advances
Prop Cumulative Cumulative Mstr.Svcr/CMSLP Default Interest Other
Type Principal Interest Scheduled UPB Earned To Date Date
<S> <C> <C> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
Last Update: 20-Mar-98
Cutoff Date: 05-May-99
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Site Inspec.
Prop Spec. Serv. Fee Reimburseable Expenses Date
Type Cumulative Amt. Description Amt. Date Condition
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
ASSETS UNDER REVIEW 1=MultiFamily 4=Retail 7=Mobile Home Park
Status Report 2=Hotel 5=LI. Indus. 8=Nursing Home
3=Office 6=Dis. Warhs. 9=Storage Facility
10=Other
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Borrower Name Borrower's Net Cash Flow Scheduled
Prop CRIIMI# Project Name Loan Bal. As of Date P&I Pymt.
Type Mstr-Svcr# Project Facts Last Pd Install Most Recent DSC Pd. Thru Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
REO
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Advances
Prop Cumulative Cumulative Mstr.Svcr/CMSLP Default Interest Other
Type Principal Interest Scheduled UPB Earned To Date Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
Last Update: 20-Mar-98
Cutoff Date: 05-May-99
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Site Inspec.
Prop Spec. Serv. Fee Reimburseable Expenses Date
Type Cumulative Amt. Description Amt. Date Condition
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
ASSETS UNDER REVIEW 1=MultiFamily 4=Retail 7=Mobile Home Park
Status Report 2=Hotel 5=LI. Indus. 8=Nursing Home
3=Office 6=Dis. Warhs. 9=Storage Facility
10=Other
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Borrower Name Borrower's Net Cash Flow Scheduled
Prop CRIIMI# Project Name Loan Bal. As of Date P&I Pymt.
Type Mstr-Svcr# Project Facts Last Pd Install Most Recent DSC Pd. Thru Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Non-CMBS
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Advances
Prop Cumulative Cumulative Mstr.Svcr/CMSLP Default Interest Other
Type Principal Interest Scheduled UPB Earned To Date Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
Last Update: 20-Mar-98
Cutoff Date: 05-May-99
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Site Inspec.
Prop Spec. Serv. Fee Reimburseable Expenses Date
Type Cumulative Amt. Description Amt. Date Condition
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
ASSETS UNDER REVIEW 1=MultiFamily 4=Retail 7=Mobile Home Park
Status Report 2=Hotel 5=LI. Indus. 8=Nursing Home
3=Office 6=Dls. Warhs. 9=Storage Facility
10=Other
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Borrower's Net Cash Flow Scheduled
Prop CRIIMI# Project Name Loan Bal As of Date P&I Pymt.
Type Mstr-Svcr# Project Facts Last Pd Install Most Recent DSC Pd. Thru Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Non-CMBS-REO
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Advances
Prop Cumulative Cumulative Mstr.8vcr/CMSLP Default Interest Other
Type Principal Interest Scheduled UPB Earned To Date Date
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
(RESTUBBED TABLE CONTINUED FROM ABOVE)
Last Update: 20-Mar-98
Cutoff Date: 05-May-99
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Assigned Site Inspec.
Prop Spec. Serv. Fee Reimburseable Expenses Date
Type Cumulative Amt. Description Amt. Date Condition
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
<TABLE>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC1
SPECIAL SERVICER LOAN STATUS REPORT
AS OF ____________
ASSETS UNDER REVIEW 1=MultiFamily 4=Retail 7=Mobile Home Park LAST UPDATE: 20-MAY-98
Status Report 2=Hotel 5=LI. Indus. 8=Nursing Home CUT-OFF DATE: 05-MAY-98
3=Office 6=Dls. Warhs. 9=Storage Facility
10=Other
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Advances
Crossover's Net Cash Flow Subordinated ---------------------------------------------------------------------
Loan Bal. As of Date Pd. by and Cumulative Cumulative Mslr. Bvcr/CNSLP Default Interest Other
??????????? Most recent DSC Pd. Thru Date Principal Interest Schedule UPB Earned To Date Date
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
- --------------------------------------------------------------
File Inspec.
Spec. Serv. Fcs Reimburseable Expenses Date
Cumulative Arrd. Description Armt. Date Condition
- --------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-6
FORM OF OPERATING STATEMENT ANALYSIS REPORT
<PAGE>
<TABLE>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC2
OPERATING STATEMENT ANALYSIS REPORT
(FORMAT SUBJECT TO MODIFICATION IN ACCORDANCE WITH CSSA REPORTING)
AS OF ____________
<CAPTION>
PROPERTY OVERVIEW
<S> <C>
-------------
Prospectus Number
------------------------
Scheduled Balance/Paid
to Date
-------------------------------------------------------------------------------------------------
Property Name
-------------------------------------------------------------------------------------------------
Property Type
-------------------------------------------------------------------------------------------------
Property Address, City, State
-------------
Net Rentable Square Feet
------------------------
Year Built/Year Renovated
--------------------------------------------------------------------------
Year of Operations UNDERWRITING 1994 1995 1996 TRAILING
--------------------------------------------------------------------------
Occupancy Rate *
--------------------------------------------------------------------------
Average Rental Rate
--------------------------------------------------------------------------
* OCCUPANCY RATES ARE YEAR END OR THE ENDING DATE OF THE FINANCIAL
STATEMENT FOR THE PERIOD.
NO. OF MOS.
-----------
INCOME: PRIOR YR. CURRENT YR.
Number of Mos. -------------------------------------------------------------------------------------
Period Ended UNDERWRITING
Statement Classification BASE LINE NORMALIZED NORMALIZED NORMALIZED AS OF / /97 VARIANCE VARIANCE
-------------------------------------------------------------------------------------
Rental Income (Category 1)
-------------------------------------------------------------------------------------
Rental Income (Category 2)
-------------------------------------------------------------------------------------
Rental Income (Category 3)
-------------------------------------------------------------------------------------
Pass Through Escalations
-------------------------------------------------------------------------------------
Other Income
-------------------------------------------------------------------------------------
GROSS INCOME $0.00 $0.00 $0.00 $0.00 $0.00 % %
-------------------------------------------------------------------------------------
Normalized - Trailing 12 months and full year financial statements that have been
reviewed by the underwriter or Servicer
** Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
-------------------------------------------------------------------------------------
Real Estate Taxes
-------------------------------------------------------------------------------------
Property Insurance
-------------------------------------------------------------------------------------
Utilities
-------------------------------------------------------------------------------------
General & Administrative
-------------------------------------------------------------------------------------
Repairs & Maintenance
-------------------------------------------------------------------------------------
Management Fees
-------------------------------------------------------------------------------------
Payroll & Benefits Expenses
-------------------------------------------------------------------------------------
Advertising & Marketing
-------------------------------------------------------------------------------------
Professional Fees
-------------------------------------------------------------------------------------
Other Expenses
-------------------------------------------------------------------------------------
Ground Rent
-------------------------------------------------------------------------------------
TOTAL OPERATING EXPENSES $0.00 $0.00 $0.00 $0.00 $0.00 % %
-------------------------------------------------------------------------------------
NET OPERATING INCOME $0.00 $0.00 $0.00 $0.00 $0.00 % %
-------------------------------------------------------------------------------------
Leasing Commissions
-------------------------------------------------------------------------------------
Tenant Improvements
-------------------------------------------------------------------------------------
Replacement Reserve
-------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00 % %
-------------------------------------------------------------------------------------
N.O.I. AFTER CAPITAL ITEMS $0.00 $0.00 $0.00 $0.00 $0.00 % %
-------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER) $0.00 $0.00 $0.00 $0.00 $0.00 % %
-------------------------------------------------------------------------------------
CASH FLOW AFTER DEBT SERVICE $0.00 $0.00 $0.00 $0.00 $0.00 % %
-------------------------------------------------------------------------------------
(1) DSCR: (NOI/DEBT SERVICE)
-------------------------------------------------------------------------------------
(1) DSCR: (AFTER RESERVES\
CAP EXP.)
-------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
-------------------------------------------------------------------------------------
(i.e., operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS:
- ----------------------------------------------------------------------------------------------------------------------
The years shown above will roll always showing a three year history. 1997 is
the current year financials; 1996 is the prior year financials. This report may
vary depending on the property type and because of the way information may vary
in each borrowers statement.
Rental income needs to be broken down whenever possible for each property type
as follows:
Retail 1) Base Rent 2) Percentage rents on cashflow
Hotel 1) Room Revenue 2) Food/Beverage Nursing Home 1) Private 2) Medicated 3) Medicare
INCOME: COMMENT
EXPENSE: COMMENT
CAPITAL ITEMS: COMMENT
(1) Used in the Comparative Financial Status Report, as applicable Quarterly
</TABLE>
<PAGE>
EXHIBIT G-7
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC2
COMPARATIVE FINANCIAL STATUS REPORT
AS OF _______________
ORIGINAL UNDERWRITING 2ND PRECEDING ANNUAL OPERATING
INFORMATION INFORMATION
BASIS YEAR AS OF ______ NORMALIZED
- ------------------------------------------------------------------------------------------------------------------------------------
Last
Property Financial Financial
Inspect Scheduled Paid Annual Info as (1) Info as (1)
Prospectus Date Loan Thru Debt of Date % Total $ (2) of Date % Total $ (1)
ID City State yy/mm Balance Date Service yy/mm Occ Revenue NOI DSCR yy/mm Occ Revenue NOI DSCR
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
List all loans currently in deal with or without information largest to smallest loan
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total: $ $ WA $ $ WA WA $ $ WA
- ------------------------------------------------------------------------------------------------------------------------------------
RECEIVED: REQUIRED:
---------------------------------------------------------------------
FINANCIAL INFORMATION: LOANS BALANCE LOANS BALANCE
---------------------------------------------------------------------
# % $ % # % $ %
- ------------------------------------------------------------------------------------------------------------------------------------
CURRENT FULL YEAR:
- ------------------------------------------------------------------------------------------------------------------------------------
CURRENT FULL YR. RECEIVED WITH DSCR <1:
- ------------------------------------------------------------------------------------------------------------------------------------
PRIOR FULL YEAR:
- ------------------------------------------------------------------------------------------------------------------------------------
PRIOR FULL YR. RECEIVED WITH DSCR <1:
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
PRECEDING ANNUAL OPERATING YTD OR TRAILING 12 MONTHS NET CHANGE (2)
INFORMATION FINANCIAL INFORMATION
AS OF _____ NORMALIZED MONTH REPORTED ACTUAL PRECEDING & BASIS
- -------------------------------------------------------------------------------------------------------------
Financial
Info as (1) FS Start FS End %
of Date % Total $ (1) Date Date Total $ % % Total (1)
yy/mm Occ Revenue NOI DSCR yy/mm yy/mm Revenue NOI DSCR Occ Revenue DSCR
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
WA $ $ WA WA $ $ WA WA $ WA
- -------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally calculated using NOI/Debt Service.
(2) Net change should compare the latest year to the underwriting year
</TABLE>
<PAGE>
EXHIBIT G-8
FORM OF WATCHLIST
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE CAPITAL FUNDING, INC. MULTIFAMILY/COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-MC1
WATCH LIST
AS OF _______________
- -----------------------------------------------------------------------------------------------------------------------------------
SHORT NAME SCHEDULED PAID
PROSPECTUS (WHEN LOAN THRU MATURITY LTM*
ID APPROPRIATE) PROPERTY TYPE CITY STATE BALANCE DATE DATE DSCR COMMENT/REASON ON WATCH LIST
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list and reason sorted in decending balance order.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
Total: $
- -----------------------------------------------------------------------------------------------------------------------------------
*LTM - Last 12 months either trailing or last annual
</TABLE>
<PAGE>
EXHIBIT H-1
CSSA SET-UP DATA RECORD LAYOUT
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA SETUP DATA RECORD LAYOUT)
LOAN LEVEL ONLY - REFLECTS OFFERING DOCUMENTATION
(PAGE 1 OF 4)
<CAPTION>
- ------------------------------ --------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
- ------------------------------ --------------------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking Factor;
Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
- ------------------------------ --------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------ --------------------------------- --------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ------------------------------ --------------------------------- --------------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan Group
Within An Issue
Loan Id 3 AN 00000000012345 Unique Indentification Number Assigned To Each Collateral
Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Indentification Number Assigned To Each Collateral
Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To Remit
Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78'S
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
- ------------------------------ --------------------------------- --------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA SETUP DATA RECORD LAYOUT)
LOAN LEVEL ONLY - REFLECTS OFFERING DOCUMENTATION
(PAGE 2 OF 4)
<CAPTION>
- ---------------------------------------------- ---------------------------- ---------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ---------------------------------------------- ---------------------------- ---------------------------------------------------
<S> <C> <C> <C> <C>
Prepayment Terms Description 21 AN Text Description Of Prepayment Terms (Not To Exceed
50 Characters)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of
The Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm
Loan Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm
Loan Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed
Per The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To The Note Rate Allowed
Per The Loan Agreement
Periodic Payment Adjustment Max-% 30 Numeric 0.03 Maximum Periodic Percentage Increase To The
Borrowers P&I Payment Allowed Per The Loan
Agreement
Periodic Payment Adjustment Max-$ 31 Numeric 5000.00 Maximum Periodic Dollar Increase To The Borrowers
P&I Payment Allowed Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Rate Reset Frequency In Months 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Payment Reset Frequency In Months 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin (See
Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment
Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Negate Allowed (% Of Orig Balance) 39 Numeric 0.075 Maximum Lifetime Percentage Increase To The
Original Balance Allowed Per The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar Increase To The Original
Balance Allowed Per The Loan Agreement
Remaining Term At Securitization 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan
At Cutoff
Remaining Amortized Term At Securitization 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At
Cutoff
Maturity Date At Securitization 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan
At Securitization
Scheduled Principal Balance At Securitization 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage
Loan At Securitization
Note Rate At Securitization 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable
To The Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And
Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net Pass-Through
Rate
Net Rate At Securitization 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
Periodic P&I Payment At Securitization 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest
Payment
- ---------------------------------------------- ---------------------------- ---------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA SETUP DATA RECORD LAYOUT)
LOAN LEVEL ONLY - REFLECTS OFFERING DOCUMENTATION
(PAGE 3 OF 4)
<CAPTION>
- ---------------------------------------- ---------------------------- ----------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ---------------------------------------- ---------------------------- ----------------------------------------------------------
<S> <C> <C> <C> <C>
# Of Properties 54 Numeric 13 The Number Of Properties Underlying The Mortgage Loan
Property Name 55 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Address 56 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property City 57 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property State 58 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Zip Code 59 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property County 60 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Type Code 61 AN MF If Number Of Properties Is Greater Than 1 Then "Various"
(See Property Type Code Legend)
Net Square Feet At Securitization 62 Numeric 25000 If Number Of Properties Is Greater Than 1 Then "Various"
# Of Units/Beds/Rooms At Securitization 63 Numeric 75 If Number Of Properties Is Greater Than 1 Then "Various"
Year Built 64 AN 1990 If Number Of Properties Is Greater Than 1 Then "Various"
NOI At Securitization 65 Numeric 100000.00 Net Operating Income At Securitization
DSCR At Securitization 66 Numeric 2.11 DSCR At Securitization
Appraisal Value At Securitization 67 Numeric 1000000.00 Appraisal Value At Securitization
Appraisal Date At Securitization 68 AN YYYYMMDD Appraisal Date At Securitization
Physical Occupancy At Securitization 69 Numeric 0.88 Physical Occupancy At Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At Securitization 71 Numeric 100000.00 Expenses At Securitization
Securitization Financials As Of Date 72 AN YYYYMMDD Securitization Financials As Of Date
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/N) 74 AN Y Y=Yes, N=No
Cross-Collateralized Loan Grouping 75 Numeric 9(3) All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No
Lien Position At Securitization 78 Numeric 1 1=First, 2=Second...
- ---------------------------------------- ---------------------------- ----------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA SETUP DATA RECORD LAYOUT)
LEGEND
(PAGE 4 OF 4)
<CAPTION>
- ----------------------------------------- --------------------------------------------- ----------------------------------------
PAYMENT TYPE CODE ARM INDEX CODE ROUNDING CODE
LEGEND LEGEND LEGEND
- ----------------------------------------- --------------------------------------------- ----------------------------------------
<S> <C> <C>
1 Fully Amortizing A 11 FHLB COFI (1 Month) 1 Unrounded
2 Amortizing Balloon B 11 FHLB COFI (6 Month) 2 Nearest Percentage Increment
3 Interest Only / Balloon C 1 Year CMT Weekly Average Treasury 3 Up To Nearest Percentage Increment
4 Interest Only / Amortizing D 3 Year CMT Weekly Average Treasury 4 Down To Nearest Percentage Increment
5 Interest Only / Amortizing / Balloon E 5 Year CMT Weekly Average Treasury
6 Principal Only F Wall Street Journal Prime Rate
9 Other G 1 Month LIBOR
- ----------------------------------------- H 3 Month LIBOR ----------------------------------------
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text Description
---------------------------------------------
---------------------------------------------
PROPERTY TYPES CODE
LEGEND
---------------------------------------------
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
---------------------------------------------
</TABLE>
<PAGE>
EXHIBIT H-2
CSSA PERIODIC DATA RECORD LAYOUT
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA PERIODIC DATA RECORD LAYOUT)
LOAN LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
(PAGE 1 OF 4)
<CAPTION>
- ------------------------------------- -------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
- ------------------------------------- -------------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
- ------------------------------------- -------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------- ---------------------------------- ------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ------------------------------------- ---------------------------------- ------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Identification Number Assigned To Each
Collateral Item In A Pool
Prospectus Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Scheduled Principal Balance At The
Beginning Of The Current Period
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Scheduled Principal Balance At The End Of
The Current Period
Paid To Date 8 AN YYYYMMDD Due Date Of The Last Interest Payment Received
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To The Calculation
Of The Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final
Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate To Determine Net Pass-Through Rate
Net Pass-Through Rate 18 Numeric 0.0897 Annualized Interest Rate Applicable To The
Calculation Of The Current Period Remittance
Interest
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To The
Calculation Of The Next Period Scheduled Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
- ------------------------------------- ---------------------------------- -------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA PERIODIC DATA RECORD LAYOUT)
LOAN LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
(PAGE 2 OF 4)
<CAPTION>
- ---------------------------------------- --------------------------- ----------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ---------------------------------------- --------------------------- ----------------------------------------------------------
<S> <C> <C> <C> <C>
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current Period
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal And Interest Payment Due For The
Current Period
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due For
The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During The
Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yield Maint Received 30 Numeric 1000.00 Additional Payment Required From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Scheduled Gross Interest Applicable To The
Prepayment Amount
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER $ 33 Numeric 1000.00 Excess Of The Principal Balance Over The Defined
Appraisal Percentage
Most Recent ASER Date 34 AN YYYYMMDD Date ASER Amount Applied To Loan
Cumulative ASER $ 35 Numeric 1000.00 Cumulative ASER Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of The
Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of The
Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y",
Else "N")
Foreclosure Date 42 AN YYYYMMDD Date Of Foreclosure
REO Date 43 AN YYYYMMDD Date Of REO
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Received On Liquidation To Be Remitted To
The Trust Per The Trust Documentation
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liquidation To Be Netted
From The Trust Per The Trust Documentation
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses 53 Numeric 1000.00 Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI 54 Numeric 1000.00 Preceding Fiscal Year Net Operating Income
Preceding Fiscal Year Debt Service Amt. 55 Numeric 1000.00 Preceding Fiscal Year Debt Service Amount
Preceding Fiscal Year DSCR 56 Numeric 2.55 Preceding Fiscal Year Debt Service Coverage Ratio
- ---------------------------------------- --------------------------- ----------------------------------------------------------
----------------------------------
All Financial Update Fields Are
Calculated and/or Presented in The
Manner Described In The Associated
Trust Documentation.
----------------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA PERIODIC DATA RECORD LAYOUT)
LOAN LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
(PAGE 3 OF 4)
<CAPTION>
- ----------------------------------------- --------------------------- ---------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
- ----------------------------------------- --------------------------- ---------------------------------------------------------
<S> <C> <C> <C> <C>
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date 58 AN YYYYMMDD Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue 59 Numeric 1000.00 Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses 60 Numeric 1000.00 Second Preceding Fiscal Year Expenses
Second Preceding FY NOI 61 Numeric 1000.00 Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service 62 Numeric 1000.00 Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR 63 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage Ratio
Sec Preceding FY Physical Occupancy 64 Numeric 0.85 Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Financial As of Date 65 AN YYYYMMDD Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00 Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00 Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI 68 Numeric 1000.00 Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00 Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR 70 Numeric 2.55 Most Recent Fiscal Year To Date Debt Service Coverage
Ratio
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85 Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date 74 AN YYYYMMDD The Date Of The Latest Available Appraisal For The
Property
Most Recent Appraisal Value 75 Numeric 100000.00 The Latest Available Appraisal Value For The Property
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Spec Service Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Service Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
Date Asset is Expected to Be Resolved 79 AN YYYYMMDD Date Asset Is Expected To Be Resolved
Year Last Renovated 80 AN 1997 Year Property Last Renovated
- ----------------------------------------- --------------------------- ---------------------------------------------------------
NEW FEILDS ADDED:
- ----------------------------------------- --------------------------- ---------------------------------------------------------
Cap Rate Assigned 81 Numeric 10 Cap Rate Assigned
FCL Sale Date (Expected or Actual) 82 AN YYYYMMDD FCL Sale Date Expected or Actual
Pending Offers 83 Numeric 1,000,000 Pending Offers - Note Sale, REO or DPO
- ----------------------------------------- --------------------------- ---------------------------------------------------------
---------------------------
Most Recent Fiscal YTD
Figures Are From The Last
Financials Processed By The
Servicer Pursuant To The
Terms Of The Trust
Document, And Cover The
Period From The Start Date
To The End Date.
---------------------------
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL REAL ESTATE
SECONDARY MARKET
AND
SECURITIZATION ASSOCIATION
(CSSA PERIODIC DATA RECORD LAYOUT)
LEGEND
(PAGE 4 OF 4)
<CAPTION>
- -------------------------------------- ----------------------------------------------------------- ----------------------------
LIQUIDATION/PREPAYMENT CODE STATUS OF MORTGAGE LOAN MODIFICATION CODE
LEGEND LEGEND LEGEND
- -------------------------------------- ----------------------------------------------------------- ----------------------------
<S> <C> <C>
1 Partial Liquidation (Curtailment) A Payment Not Received But Still In Grace Period 1 Maturity Date Extension
2 Payoff Prior To Maturity B Late Payment But Less Than 1 Month Delinquent 2 Amortization Change
3 Disposition 0 Current 3 Principal Write-Off
4 Repurchase 1 One Month Delinquent 4 Combination
5 Full Payoff At Maturity 2 Two Months Delinquent
6 DPO 3 Three Or More Months Delinquent
7 Liquidation 4 Assumed Scheduled Payment (Performing Matured Balloon)
- -------------------------------------- 7 Foreclosure ----------------------------
9 REO
-----------------------------------------------------------
-----------------------------------------------------------
WORKOUT STRATEGY CODE
LEGEND
-----------------------------------------------------------
1 Modification
2 Foreclosure
3 Bankruptcy
4 Extension
5 Note Sale
6 DPO
7 REO
8 Resolved
9 Pending Return to Master Servicer
10 Deed In Lieu Of Foreclosure
-----------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT H-3
CSSA PROPERTY DATA FILE
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
- --------------------------------------- ---------------------------------- ------------------------------------------ --------
FIELD FORMAT CSSA
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS LOAN
- --------------------------------------- ---------------------------------- ------------------------------------------ --------
<S> <C> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 S1,P1
Loan ID 2 AN XXX9701A S3,P3
Prospectus Loan ID 3 AN 00000000012345 From Offering Document S4,P4
Property ID 4 AN 1001-001 Should contain Prospectus ID and
propety identifier, e.g., 1001-001,
1000-002
Distribution Date 5 AN YYYYMMDD P5
Cross-Collateralized Loan Grouping 6 Numeric 9(3) All Loans With The Same Numeric Value
Are Crossed S75
Property Name 7 AN Text S55
Property Address 8 AN Text S56
Property City 9 AN Text S57
Property State 10 AN FL S58
Property Zip Code 11 AN 30303 S59
Property County 12 AN Text S60
Property Type Code 13 AN MF S61
Year Built 14 AN YYYY S64
Year Last Renovated 15 AN YYYY P80
Net Square Feet At Securitization 16 Numeric 25000 RT, IN, WH, OF, MU, SS,OT = SF S62
# Of Units/Beds/Rooms At
Securitization 17 Numeric 75 MF, MHP, LO, HC = Units S63
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial
Release, 5= Released, 6= Same as at
securitization
Allocated Percentage of Loan at
Securitization 19 Numeric 0.75 Issuer to allocate loan % attributable
to property for multi-property loans
Current Allocated Percentage 20 Numeric 0.75 Calculation based on Current Allocated
Loan Amount and Current SPB for
associated loan.
Current Allocated Loan Amount 21 Numeric 5900900 Maintained by servicer. P7
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinat, N= No
ground lease S74
Other Escrow / Reserve Balances 23 Numeric 25000 S77
Most Recent Appraisal Date 24 AN YYYYMMDD P74
Most Recent Appraisal Value 25 Numeric 1000000 P75
Date Asset is Expected to Be
Resolved 26 AN YYYYMMDD Could be different dates for different
properties if foreclosing P79
Foreclosure Date 27 AN YYYYMMDD P42
REO Date 28 AN YYYYMMDD P43
Occupancy % 29 Numeric 0.75 Map to "Most Recent Fiscal YTD Phys.
Occ." in CSSA P71
Occupancy Date 30 Numeric YYYYMMDD Add a new field to the CSSA Loan file. P71
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every
12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial *Only
if disclosed in the offering document
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial *Only
if disclosed in the offering document
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial *Only
if disclosed in the offering document
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12 Needed to indicate month ending for
borrower's Fiscal Year
Securitization Financials As Of Date 44 AN YYYYMMDD S72
Revenue At Securitization 45 Numeric 1000000 S70
Operating Expenses At Securitization 46 Numeric 1000000 S71
NOI At Securitization 47 Numeric 1000000 S65
DSCR At Securitization 48 Numeric 1.5 S66
Appraisal Value At Securitization 49 Numeric 1000000 S67
Appraisal Date At Securitization 50 AN YYYYMMDD S68
Physical Occupancy At Securitization 51 Numeric S69
Date of Last Inspection 52 AN YYYYMMDD
Preceding FY Financial As of Date 53 AN YYYYMMDD P58
Preceding Fiscal Year Revenue 54 Numeric 1,000,000 P52
Preceding Fiscal Year Expenses 55 Numeric 1,000,000 P53
Preceding Fiscal Year NOI 56 Numeric 1,000,000 P54
Preceding Fiscal Year Debt
Service Amt. 57 Numeric 1,000,000 P55
Preceding Fiscal Year DSCR 58 Numeric 1.30 P56
Preceding Fiscal Year Physical
Occupancy 59 Numeric 0.90 P57
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD P65
Second Preceding FY Revenue 61 Numeric 1,000,000 P59
Second Preceding FY Expenses 62 Numeric 1,000,000 P60
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Second Preceding FY NOI 63 Numeric 1,000,000 P61
Second Preceding FY Debt Service 64 Numeric 1,000,000 P62
Second Preceding FY DSCR 65 Numeric 1.30 P63
Sec Preceding FY Physical Occupancy 66 Numeric 0.90 P64
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"SETUP FILE" - SHOULD BE INCLUDED ON THE DISKETTE AS PART OF THE OFFERING DOCUMENT.
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COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
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FIELD NAME RELATIONSHIP TO CORRESPONDING CSSA 100.1 FIELD
- ----------------------------------------- ---------------------------------------------------------------------------------------
<S> <C>
Transaction Id Same as CSSA Loan File
Loan ID Same as CSSA Loan File
Prospectus Loan ID Same as CSSA Loan File
Property ID
Distribution Date Same as CSSA Loan File
Cross-Collateralized Loan Grouping
Property Name If Multi-Prop, no rollup to CSSA Loan File. Populate S55 with"Various."
Property Address If Multi-Prop, no rollup to CSSA Loan File. Populate S56 with"Various."
Property City If Multi-Prop, and all same then populate S57 with City, otherwise, "Various".
Missing info= "incomplete"
Property State If Multi-Prop, and all same then populate S58 with State, otherwise, "Various".
Missing info= "incomplete"
Property Zip Code If Multi-Prop, and all same then populate S59 with Zip, otherwise, "Various".
Missing info= "incomplete"
Property County If Multi-Prop, and all same then populate S60 with County, otherwise, "Various".
Missing info= "incomplete"
Property Type Code If Multi-Prop and all same then populate S61 with property type otherwise "Various".
Missing Info ="incomplete"
Year Built If Multi-Prop, and all same then populate S64 with year otherwise, "000000".
Year Last Renovated If Multi-Prop, and all same then populate P80 with year otherwise, "000000".
Net Square Feet At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
# Of Units/Beds/Rooms At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
Property Status If multi-prop and all same than populate CSSA Loan file with property, status,
otherwise various.
Allocated Percentage of Loan at
Securitization No field needed in Cssa Loan file
Current Allocated Percentage No field needed in Cssa Loan file
Current Allocated Loan Amount Roll-up to Current Ending SPB (P7)
Ground Lease (Y/S/N) If any property is Y, or S then S74=Y
Other Escrow / Reserve Balances If any property populated, then S77=Y
Most Recent Appraisal Date If Multi-Prop, and all same then populate P74 with date, otherwise, "000000".
Most Recent Appraisal Value Roll-up to CSSA Loan File if populated. If missing any appraisal value, than populate
P75 with "000000)
Date Asset is Expected to Be Resolved If Multi-Prop, latest date from affiliated properties for P79.
Foreclosure Date If Multi-Prop, and all same then populate P42 with date, otherwise, "000000".
REO Date If Multi-Prop, and all same then populate P43 with date, otherwise, "000000".
Occupancy % [Weighted Average] For P71=Sum((Curr. Allocated % Prop A) *(Occupancy Prop A)...
(Curr. Allocated % Prop Z) * (Occupancy Prop Z)). If missing one, then, "00000"
Occupancy Date If Multi-Prop, and all same then populate with date, otherwise, "various+K62".
Date Lease Rollover Review No Roll up to the CSSA loan format.
% Sq. Feet expiring 1-12 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 13-24 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 25-36 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 37-48 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 49-60 months No Roll up to the CSSA loan format.
Largest Tenant No Roll up to the CSSA loan format.
Square Feet of Largest Tenant No Roll up to the CSSA loan format.
2nd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 2nd Largest Tenant No Roll up to the CSSA loan format.
3rd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 3rd Largest Tenant No Roll up to the CSSA loan format.
Fiscal Year End Month No Roll up to the CSSA loan format.
Securitization Financials As Of Date If Multi-Prop, and all same then populate S72 with date, otherwise, "000000".
Revenue At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Operating Expenses At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S71 with "0000"
NOI At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S85 with "0000"
DSCR At Securitization [Weighted Average] S66=Sum((Allocated % at Sec. Prop A) *(DSCR Prop A)...((Allocated
% at Sec. Prop Z) * (DSCR Prop Z). If missing one, "00000"
Appraisal Value At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Appraisal Date At Securitization If Multi-Prop, and all same then populate S68 with date, otherwise, "000000".
Physical Occupancy At Securitization Weighted Average
Date of Last Inspection
Preceding FY Financial As of Date If Multi-Prop, and all same then populate P58 with date, otherwise, "000000+K23K46".K1
Preceding Fiscal Year Revenue No Roll up to the CSSA loan format.
Preceding Fiscal Year Expenses No Roll up to the CSSA loan format.
Preceding Fiscal Year NOI No Roll up to the CSSA loan format.
Preceding Fiscal Year Debt Service Amt. No Roll up to the CSSA loan format.
Preceding Fiscal Year DSCR No Roll up to the CSSA loan format.
Preceding Fiscal Year Physical Occupancy No Roll up to the CSSA loan format.
Sec Preceding FY Financial As of Date No Roll up to the CSSA loan format.
Second Preceding FY Revenue No Roll up to the CSSA loan format.
Second Preceding FY Expenses No Roll up to the CSSA loan format.
Second Preceding FY NOI No Roll up to the CSSA loan format.
Second Preceding FY Debt Service No Roll up to the CSSA loan format.
Second Preceding FY DSCR No Roll up to the CSSA loan format.
Sec Preceding FY Physical Occupancy No Roll up to the CSSA loan format.
- ----------------------------------------- ---------------------------------------------------------------------------------------
"SETUP FILE" - SHOULD BE INCLUDED ON THE DISKETTE AS PART OF THE OFFERING DOCUMENT.
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