===============================================================================
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.,
DEPOSITOR
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
SERVICER
AMRESCO MANAGEMENT, INC.,
SPECIAL SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
AND
ABN AMRO BANK N.V.,
FISCAL AGENT
POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 1, 1998
$714,739,121
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1
===============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I.
DEFINITIONS.................................................................. 5
SECTION 1.01. Defined Terms........................................................................... 5
SECTION 1.02. Certain Calculations.................................................................... 54
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES..................................... 56
SECTION 2.01. Conveyance of Mortgage Loans............................................................ 56
SECTION 2.02. Acceptance by Trustee................................................................... 58
SECTION 2.03. Representations, Warranties and Covenants of the Depositor; Mortgage Loan Seller's
Repurchase of Mortgage Loans for Defects in Mortgage Files and Breaches of
Representations and Warranties.......................................................... 60
SECTION 2.04. Execution of Certificates............................................................... 62
ARTICLE III.
ADMINISTRATION AND
SERVICING OF THE TRUST FUND........................................ 64
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act as Special Servicer;
Administration of the Mortgage Loans.................................................... 64
SECTION 3.02. Collection of Mortgage Loan Payments.................................................... 65
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts.................. 67
SECTION 3.04. The Certificate Account and the Lower-Tier and Upper-Tier Distribution Accounts......... 69
SECTION 3.05. Permitted Withdrawals From the Certificate Account and the Distribution Accounts........ 72
SECTION 3.06. Investment of Funds in the Certificate Account, the Distribution Accounts and the REO
Account................................................................................. 76
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage........... 78
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements............................... 81
SECTION 3.09. Realization Upon Defaulted Mortgage Loans............................................... 83
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files......................................... 85
SECTION 3.11. Servicing Compensation.................................................................. 86
SECTION 3.12. Inspections; Collection of Financial Statements......................................... 89
SECTION 3.13. Annual Statement as to Compliance....................................................... 90
(i)
SECTION 3.14. Reports by Independent Public Accountants............................................... 91
SECTION 3.15. Access to Certain Information........................................................... 91
SECTION 3.16. Title to REO Property; REO Account...................................................... 92
SECTION 3.17. Management of REO Property.............................................................. 93
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties..................................... 96
SECTION 3.19. [Intentionally Omitted]................................................................. 98
SECTION 3.20. Modifications, Waivers, Amendments and Consents......................................... 98
SECTION 3.21. Transfer of Servicing Between Servicer and Special Servicer; Record Keeping; Asset
Status Report...........................................................................102
SECTION 3.22. Sub-Servicing Agreements................................................................106
SECTION 3.23. Representations and Warranties of the Servicer..........................................108
SECTION 3.24. Representations and Warranties of the Special Servicer..................................110
SECTION 3.25. Interest Reserve Account................................................................112
ARTICLE IV.
PAYMENTS TO CERTIFICATEHOLDERS.......................................113
SECTION 4.01. Distributions...........................................................................113
SECTION 4.02. Statements to Certificateholders; CSSA Standard Information Package.....................122
SECTION 4.03. P&I Advances............................................................................127
SECTION 4.04. Allocation of Collateral Support Deficit................................................129
SECTION 4.05. Appraisal Reductions....................................................................130
SECTION 4.06. Certificate Deferred Interest...........................................................130
ARTICLE V.
THE CERTIFICATES..............................................131
SECTION 5.01. The Certificates........................................................................131
SECTION 5.02. Registration of Transfer and Exchange of Certificates...................................132
SECTION 5.03. Book-Entry Certificates.................................................................141
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.......................................143
SECTION 5.05. Persons Deemed Owners...................................................................144
SECTION 5.06. Appointment of Paying Agent.............................................................144
ARTICLE VI.
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER.....................................145
SECTION 6.01. Liability of the Depositor, the Servicer and the Special Servicer.......................145
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the Servicer or the Special
Servicer................................................................................145
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer, the Special Servicer and Others.145
SECTION 6.04. Depositor, Servicer and Special Servicer Not to Resign..................................147
(ii)
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and the Special Servicer.............147
ARTICLE VII.
DEFAULT..................................................148
SECTION 7.01. Events of Default; Servicer and Special Servicer Termination............................148
SECTION 7.02. Trustee to Act; Appointment of Successor................................................150
SECTION 7.03. Notification to Certificateholders......................................................152
SECTION 7.04. Waiver of Events of Default.............................................................152
SECTION 7.05. Trustee and Fiscal Agent as Makers of Advances..........................................152
ARTICLE VIII.
CONCERNING THE TRUSTEE...........................................154
SECTION 8.01. Duties of Trustee.......................................................................154
SECTION 8.02. Certain Matters Affecting the Trustee...................................................155
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans..........................................................................156
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates...........................................157
SECTION 8.05. Payment of Trustee's Fees; Indemnification of Trustee...................................157
SECTION 8.06. Eligibility Requirements for Trustee....................................................158
SECTION 8.07. Resignation and Removal of the Trustee and the Fiscal Agent.............................158
SECTION 8.08. Successor Trustee and Fiscal Agent......................................................160
SECTION 8.09. Merger or Consolidation of Trustee or Fiscal Agent......................................161
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee...........................................161
SECTION 8.11. Appointment of Custodians...............................................................162
SECTION 8.12. Access to Certain Information...........................................................162
SECTION 8.13. Representations and Warranties of the Trustee and the Fiscal Agent......................164
ARTICLE IX.
TERMINATION................................................168
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans........................168
SECTION 9.02. Additional Termination Requirements.....................................................170
ARTICLE X.
ADDITIONAL REMIC PROVISIONS........................................172
SECTION 10.01. REMIC Administration....................................................................172
SECTION 10.02. Depositor, Special Servicer, Paying Agent and Trustee to Cooperate with Servicer....176
SECTION 10.03. Use of Agents...........................................................................176
ARTICLE XI.
(iii)
MISCELLANEOUS PROVISIONS..........................................177
SECTION 11.01. Amendment...............................................................................177
SECTION 11.02. Recordation of Agreement; Counterparts..................................................179
SECTION 11.03. Limitation on Rights of Certificateholders..............................................179
SECTION 11.04. Governing Law...........................................................................180
SECTION 11.05. Notices.................................................................................180
SECTION 11.06. Severability of Provisions..............................................................181
SECTION 11.07. Confirmation of Intent: Grant of a Security Interest....................................181
SECTION 11.08. Successors and Assigns; Beneficiaries...................................................182
SECTION 11.09. Article and Section Headings............................................................182
SECTION 11.10. Notices to the Rating Agencies..........................................................182
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class B Certificate
Exhibit A-4 Form of Class C Certificate
Exhibit A-5 Form of Class D Certificate
Exhibit A-6 Form of Class E Certificate
Exhibit A-7 Form of Class F Certificate
Exhibit A-8 Form of Class G Certificate
Exhibit A-9 Form of Class H Certificate
Exhibit A-10 Form of Class I Certificate
Exhibit A-11 Form of Class J Certificate
Exhibit A-12 Form of Class K Certificate
Exhibit A-13 Form of Class X Certificate
Exhibit A-14 Form of Class R Certificate
Exhibit A-15 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E [Intentionally Omitted]
Exhibit F Form of Request for Release
Exhibit G Form of ERISA Representation Letter
Exhibit H Form of Distribution Date Statement
Exhibit I-1 Form of Comparative Financial Status Report
Exhibit I-2 Form of Delinquent Loan Status Report
Exhibit I-3 Form of Historical Loan Modification Report
Exhibit I-4 Form of Historical Loss Estimate Report
Exhibit I-5 Form of REO Status Report
Exhibit I-6 Form of Watch List Report
Exhibit I-7 Form of Operating Statement Analysis Report
Exhibit I-8 Form of NOI Adjustment Worksheet
(iv)
Exhibit I-9 Form of CSSA Loan Set-up File
Exhibit I-10 Form of CSSA Periodic Loan Update File
Exhibit I-11 Form of CSSA Property Data File
Exhibit J Form of Payments After Determination Report
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans Which Initially Pay Interest Only
Schedule 3 Mortgage Loans Without Defeasance Provisions
Schedule 4 Interest Reserve Loans
v
This Pooling and Servicing Agreement (the "Agreement"), is dated and
effective as of June 1, 1998 by and among BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE
SECURITIES INC. as Depositor, BANC ONE MORTGAGE CAPITAL MARKETS, LLC as
Servicer, AMRESCO MANAGEMENT, INC., as Special Servicer, ABN AMRO BANK N.V. as
Fiscal Agent and LASALLE NATIONAL BANK, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and mobile home community mortgage loans (the "Mortgage Loans"). As
provided herein, the Trustee shall elect or shall cause an election to be made
that each of the Upper-Tier REMIC and the Lower-Tier REMIC be treated for
federal income tax purposes as a real estate mortgage investment conduit (a
"REMIC").
The following table sets forth the designation, the pass-through rate
(the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional
Amount"), as applicable, and the initial ratings given each Class by the Rating
Agencies (the "Original Ratings") for each Class of Certificates comprising the
interests in the Upper-Tier REMIC created hereunder:
[ Next Page is Page 2 ]
UPPER-TIER REMIC
Class
----- Pass- Original
Designation Through Rate Certificate Balance Original Rating (1)
----------- ------------ ------------------- -------------------
Class A-1 6.34% $ 129,564,000 "Aaa"/"AAA"
Class A-2 6.44% $ 417,211,428 "Aaa"/"AAA"
Class B 6.54% $ 35,736,956 "Aa2"/"AA"
Class C 6.75% $ 32,163,260 "A2"/"A"
Class D 6.75% $ 32,163,260 "Baa2"/"BBB"
Class E 6.75% $ 8,934,239 "Baa3"/"BBB-"
Class F 6.00% $ 12,507,935 */"BB+"
Class G 6.00% $ 12,507,935 "Ba2"/*
Class H 6.00% $ 5,360,543 "Ba3"/"BB-"
Class I 6.00% $ 17,868,478 "B2"/*
Class J 6.00% $ 4,645,804 "B3"/*
Class K 6.00% $ 6,075,283 */*
Class X (2) (3) "Aaa"/"AAA"
Class R None (4) */*
(1) ▇▇▇▇▇'▇ investors service, inc./duff & ▇▇▇▇▇▇ credit rating co. the
certificates marked with an asterisk have not been rated by the
applicable rating agency.
(2) the class x certificates will not have a pass-through rate but will
bear interest in an amount for any distribution date equal to the sum
of one-month's interest at the then applicable pass-through rate on
the notional amount of each of the a-1 component, the a-2 component,
the b component, the c-e component and the f-k component immediately
prior to such distribution date. the pass-through rate for the a-1
component for any distribution date will equal the excess, if any, of
the weighted average net mortgage rate of all of the mortgage loans
outstanding on the first day of the related interest accrual period
over the class a-1 pass-through rate. the pass-through rate for the
a-2 component for any distribution date will equal the excess, if any,
of the weighted average net mortgage rate of all of the mortgage loans
outstanding on the first day of the related interest accrual period
over the class a-2 pass-through rate. the pass-through rate for the b
component for any distribution date will equal the excess, if any, of
the weighted average net mortgage rate of all of the mortgage loans
outstanding on the first day of the related interest accrual period
over the class b pass-through rate. the pass-through rate for the c-e
component for any distribution date will equal the excess, if any, of
the weighted average net mortgage rate of all of the mortgage loans
outstanding on the first day of the related interest accrual period
over the weighted average of the class c pass-through rate, the class
d pass through rate and the class e pass-through rate, weighted on the
basis of the respective certificate balances of such classes
immediately prior to such distribution date. the pass-through rate for
the f-k component for any distribution date will equal the excess, if
any, of the weighted average net mortgage rate of all of the mortgage
loans outstanding on the first day of the related interest accrual
period over the weighted average of the class f pass-through rate, the
class g pass through rate, the class h pass-through rate, the class i
pass-through rate, the class j pass-through rate and the class k
pass-through rate, weighted on the basis of the respective certificate
balances of such classes immediately prior to such distribution date.
the rate at which the class x certificates will bear interest for the
first distribution date is expected to be approximately 0.7993% per
annum.
(3) the class x certificates will not have a certificate balance and will
not be entitled to receive distributions of principal. the notional
amount of the a-1 component, the a-2 component and the b component,
respectively, is equal to the lower-tier principal amount of the class
la-1 uncertificated interest, the class la-2 uncertificated interest
or the class lb uncertificated interest, respectively, as of the
preceding distribution date (after giving effect to the distribution
of principal and allocation of collateral support deficit on such
distribution date) or in the case of the first distribution date, the
original lower-tier principal amount of the class la-1 uncertificated
interest, the class la-2 uncertificated interest or the class lb
uncertificated interest, respectively. the notional amount of the c-e
component is an amount equal to the sum of (a) the lower-tier
principal amount of the class lc uncertificated interest, (b) the
lower-tier principal amount of the class ld uncertificated interest
and (c) the lower-tier principal amount of the class le uncertificated
interest, in each case as of the preceding distribution date (in each
case after giving effect to the distribution of principal and
allocation of collateral support deficit on such distribution date).
the notional amount of the f-k component for any distribution date
will be equal to (i) the lower-tier principal amount of the class lf
uncertificated interest, (ii) the lower-tier principal amount of the
class lg uncertificated interest, (iii) the lower-tier principal
amount of the class lh uncertificated interest, (iv) the lower-tier
principal amount of the class li uncertificated interest, (v) the
lower-tier principal amount of the class lj uncertificated interest
and (vi) the lower-tier principal amount of the class lk
uncertificated interest, respectively, as of the preceding
distribution date (in each case after giving effect to the
distribution of principal and allocation of collateral support deficit
on such distribution date). the original notional amount of the a-1
component is $129,564,000. the original notional amount of the a-2
component is $417,211,428. the original notional amount of the
2
b component is $35,736,956. the original notional amount of the c-e
component is $73,260,759. the original notional amount of the f-k
component is $58,965,978.
(4) the class r certificates do not have a certificate balance or notional
amount, do not bear interest and will not be entitled to distributions
of yield maintenance charges. any available distribution amount
remaining in the upper-tier distribution account, after all required
distributions under this agreement have been made to each other class
of certificates, will be distributed to the holders of the class r
certificates.
The Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class I, Class J, Class K and Class X Certificates will
evidence "regular interests" in the Upper-Tier REMIC created hereunder. The
sole Class of "residual interests" in the Upper-Tier REMIC created hereunder
will be evidenced by the Class R Certificates. The Class LA-1, Class LA-2,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LI,
Class LJ and Class LK Uncertificated Interests will evidence "regular
interests" in the Lower-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC created hereunder will be
evidenced by the Class LR Certificates.
The following table sets forth the initial Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests:
LOWER-TIER REMIC
Class Designation Interest Rate Original Lower-Tier Principal
Amount or Notional Amount
Class LA-1 6.34% $ 129,564,000
Class LA-2 6.44% $ 417,211,428
Class LB 6.54% $ 35,736,956
Class LC 6.75% $ 32,163,260
Class LD 6.75% $ 32,163,260
Class LE 6.75% $ 8,934,239
Class LF 6.00% $ 12,507,935
Class LG 6.00% $ 12,507,935
Class LH 6.00% $ 5,360,543
Class LI 6.00% $ 17,868,478
Class LJ 6.00% $ 4,645,804
Class LK 6.00% $ 6,075,283
Class LR None None(1)
(1) the class lr certificates do not have a certificate balance or
notional amount, do not bear interest and will not be entitled to
distributions of yield maintenance charges. any available distribution
amount remaining in the lower-tier distribution account after
distributing the lower-tier distribution amount shall be distributed
to the holders of the class lr certificates (but only to the extent of
the available distribution amount for such distribution date remaining
in the lower-tier distribution account, if any).
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$714,739,121.
3
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Fiscal Agent and the Trustee
agree as follows:
4
ARTICLE I.
DEFINITIONS
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.
"A-1 Component": One of the five components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LA-1 Uncertificated Interest.
"A-1 Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the A-1 Component Pass-Through Rate, accrued on the A-1 Notional
Amount outstanding immediately prior to such Distribution Date commencing in
the month of the Closing Date.
"A-1 Component Pass-Through Rate": With respect to any Distribution
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Rate of all
of the Mortgage Loans outstanding as of the first day of the related Interest
Accrual Period over (ii) the Class A-1 Pass-Through Rate.
"A-1 Notional Amount": With respect to any Distribution Date, an
amount equal to the Lower-Tier Principal Amount of the Class LA-1
Uncertificated Interest as of the preceding Distribution Date (after giving
effect to the distribution of principal and allocation of Collateral Support
Deficit on such Distribution Date), or the Cut-off Date in the case of the
first Distribution Date.
"A-2 Component": One of the five components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LA-2 Uncertificated Interest.
"A-2 Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the A-2 Component Pass-Through Rate, accrued on the A-2 Notional
Amount outstanding immediately prior to such Distribution Date commencing in
the month of the Closing Date.
"A-2 Component Pass-Through Rate": With respect to any Distribution
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Rate of all
of the Mortgage Loans outstanding as of the first day of the related Interest
Accrual Period over (ii) the Class A-2 Pass-Through Rate.
5
"A-2 Notional Amount": With respect to any Distribution Date, an
amount equal to the Lower-Tier Principal Amount of the Class LA-2
Uncertificated Interest as of the preceding Distribution Date (after giving
effect to the distribution of principal and allocation of Collateral Support
Deficit on such Distribution Date), or the Cut-off Date in the case of the
first Distribution Date.
"Accrued Certificate Interest": (a) With respect to each Distribution
Date and each Class of Certificates (other than the Class X Certificates and
the Residual Certificates), an amount equal to interest for the related
Interest Accrual Period at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued on the related Certificate
Balance of such Class outstanding immediately prior to such Distribution Date
(i.e., such Certificate Balance is to be used for accrual of interest during
the related Interest Accrual Period notwithstanding the fact that such
Certificate Balance may be different than the actual Certificate Balance at the
start of such Interest Accrual Period) commencing in the month of the Closing
Date; (b) with respect to each Distribution Date and the Class X Certificates,
the Class X Interest Accrual Amount. Accrued Certificate Interest shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed by
the related Mortgagor to a party other than the lender under such Mortgage Loan
as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement) or, in the case of the
Pari Passu Loan, the Pari Passu Intercreditor Agreement.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
6
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, an appraisal meeting the requirements of clause (b)(i)(B)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any Mortgage
Loan as to which an Appraisal Reduction Event has occurred, an amount equal to
the excess, if any, of (a) the Stated Principal Balance of such Mortgage Loan
over (b) the excess of (i) 90% of the Appraised Value of the related Mortgaged
Property as determined (A) by one or more Appraisals with respect to any
Mortgage Loan with an outstanding principal balance equal to or in excess of
$2,000,000 (the costs of which shall be paid by the Servicer or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable, as a Servicing
Advance), and (B) by an internal valuation performed by the Special Servicer
with respect to any Mortgage Loan with an outstanding principal balance less
than $2,000,000, over (ii) the sum of, as of the Due Date occurring in the
month of such Distribution Date, (A) to the extent not previously advanced by
the Servicer or the Trustee or the Fiscal Agent, as applicable, all unpaid
interest on such Mortgage Loan at a per annum rate equal to its Mortgage Rate,
(B) all unreimbursed Advances and interest thereon at the Reimbursement Rate in
respect of such Mortgage Loan and (C) all currently due and unpaid real estate
taxes, assessments, insurance premiums and ground rents and all other amounts
due and unpaid with respect to such Mortgage Loan, net of any amounts currently
escrowed for such amounts (which taxes, premiums, ground rents and other
amounts have not been subject to an Advance by the Servicer, the Trustee or the
Fiscal Agent, as applicable); provided, however, that without limiting the
Special Servicer's obligation to order and obtain such Appraisal Reduction, if
the Special Servicer has not obtained the appraisal referred to in clause
(b)(i)(A) or (b)(i)(B) above within 60 days of the Appraisal Reduction Event,
or within 120 days with respect to an Appraisal Reduction Event as set forth in
clause (ii) of the definition of Appraisal Reduction Event, the amount of the
Appraisal Reduction shall be deemed to be an amount equal to 35% of the current
Stated Principal Balance of the related Mortgage Loan until such time as the
appraisal referred to in clause (b)(i)(A) or (b)(i)(B) above is received and
the Appraisal Reduction is calculated. Within 60 days after the Appraisal
Reduction Event, the Special Servicer shall order and receive an Appraisal (the
cost of which shall be paid as a Servicing Advance by the Servicer); provided,
however, that with respect to an Appraisal Reduction Event as set forth in
clause (ii) of the definition of Appraisal Reduction Event, the Special
Servicer shall order and receive such Appraisal within the 120 day period set
forth in such clause (ii), which Appraisal shall be delivered by the Special
Servicer to the Servicer, and the Servicer shall deliver such Appraisal to the
Trustee, who shall deliver such appraisal to the Paying Agent and each Holder
of a Class F, Class G, Class H, Class I, Class J and Class K Certificate within
15 days of receipt by the Servicer of such Appraisal from the Special Servicer.
7
Notwithstanding the foregoing, the Directing Certificateholder shall
have the right, at any time within six months of the date of its receipt of any
Appraisal of any Mortgaged Property required to be obtained pursuant to the
immediately preceding paragraph, to require that the Special Servicer obtain a
new Appraisal of such Mortgaged Property from an Independent MAI appraiser
chosen by the Special Servicer, the cost of which shall be paid by the
Controlling Class Certificateholders without right of reimbursement; provided,
however, that the Special Servicer shall not be required to obtain any such
Appraisal unless the Special Servicer shall have received reasonable assurance
of payment of the costs of such Appraisal and of any expenses related thereto.
Upon receipt of the Appraisal obtained pursuant to the immediately preceding
sentence, the Special Servicer shall redetermine and report to the Servicer,
the Trustee and the Directing Certificateholder the amount of the Appraisal
Reduction with respect to such Mortgage Loan, and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such
Mortgage Loan.
With respect to each Mortgage Loan as to which an Appraisal Reduction
has occurred (unless such Mortgage Loan has become a Corrected Mortgage Loan
and has remained current for twelve consecutive Monthly Payments (for such
purposes taking into account any amendment or modification of such Mortgage
Loan)), the Special Servicer shall, within 30 days of each annual anniversary
of the related Appraisal Reduction Event, order an Appraisal (which may be an
update of a prior Appraisal), the cost of which shall be paid by the Servicer
(or, if required by Section 3.03(c), the Trustee or the Fiscal Agent, as
applicable) as a Servicing Advance. Based upon such Appraisal, the Special
Servicer shall redetermine and report to the Servicer and the Trustee the
amount of the Appraisal Reduction with respect to such Mortgage Loan and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan.
With respect to each Mortgage Loan as to which an Appraisal Reduction
has occurred and which has become a Corrected Mortgage Loan and has remained
current for twelve consecutive Monthly Payments (for such purposes taking into
account any amendment or modification of such Mortgage Loan), and with respect
to which no other Appraisal Reduction Event has occurred and is continuing, the
Special Servicer may within 30 days of the date of such twelfth Monthly
Payment, order an Appraisal (which may be an update of a prior Appraisal), the
cost of which shall be paid by the Servicer (or, if required by Section
3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing
Advance. Based upon such Appraisal, the Special Servicer shall redetermine and
report to the Paying Agent and the Trustee the amount of the Appraisal
Reduction with respect to such Mortgage Loan. Notwithstanding the foregoing,
the Special Servicer will not be required to obtain an Appraisal with respect
to a Mortgage Loan which is the subject of an Appraisal Reduction Event to the
extent that the Special Servicer has obtained an Appraisal with respect to the
related Mortgaged Property within the 12-month period immediately prior to the
occurrence of such Appraisal Reduction Event. Instead, the Special Servicer may
use such prior Appraisal in calculating any Appraisal Reduction with respect to
such Mortgage Loan.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date
8
such Mortgage Loan is paid in full, liquidated, repurchased or otherwise
removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date,
an amount equal to the product of (a) one twelfth of the Pass-Through Rate for
each Class of Certificates to which an Appraisal Reduction is allocated and (b)
the sum of all Appraisal Reductions with respect to such Distribution Date or
(ii) (when used in order to determine the Appraisal Reduction Amount on a
Mortgage Loan-by-Mortgage Loan basis) with respect to each Mortgage Loan for
such Distribution Date, an amount equal to the product of (a) one twelfth of
the Pass-Through Rate for each Class of Certificates to which an Appraisal
Reduction is allocated, and (b) the Appraisal Reduction with respect to such
Mortgage Loan with respect to such Distribution Date
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the
terms hereof, which extension does not change the amount of Monthly Payments on
the Mortgage Loan, (ii) 120 days after an uncured delinquency (without regard
to the application of any grace period) occurs in respect of such Mortgage
Loan, (iii) the date on which a reduction in the amount of Monthly Payments on
such Mortgage Loan, or a change in any other material economic term of such
Mortgage Loan (other than an extension of the Maturity Date), becomes effective
as a result of a modification of such Mortgage Loan by the Special Servicer,
(iv) 60 days after a receiver has been appointed, (v) 60 days after a Mortgagor
declares bankruptcy and (vi) immediately after a Mortgage Loan becomes an REO
Loan; provided, however, that an Appraisal Reduction Event shall not occur at
any time when the aggregate Certificate Balances of all Classes of Certificates
(other than the Class A Certificates) has been reduced to zero. The Special
Servicer shall notify the Servicer promptly upon the occurrence of any of the
foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent MAI appraiser selected by
the Servicer or Special Servicer, as applicable.
"Asset Status Report": As defined in Section 3.21(e).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
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 Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal
9
portion of the Monthly Payment that would have been due on such Mortgage Loan
on the related Due Date based on the constant payment required by the related
Mortgage Note or the original amortization schedule thereof (as calculated with
interest at the related Mortgage Rate), if applicable, assuming such Balloon
Payment has not become due, after giving effect to any modification of such
Mortgage Loan, and (b) interest on the Stated Principal Balance of such
Mortgage Loan at the applicable Mortgage Rate (net of interest at the Servicing
Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to act as
Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in
the Certificate Account and the Lower-Tier Distribution
Account (exclusive of any investment income contained
therein) as of the close of business on the Business Day
preceding the related Servicer Remittance Date, exclusive of
(without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due on
a Due Date following the end of the related Due Period;
(ii) all Principal Prepayments (together with any related
payments of interest allocable to the period
following the Due Date for the related Mortgage Loan
during the related Due Period), Balloon Payments,
Liquidation Proceeds or Insurance and Condemnation
Proceeds received after the end of the related Due
Period;
(iii) all amounts payable or reimbursable to any Person
from the Certificate Account pursuant to clauses
(ii) - (xvi), inclusive, of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person
from the Lower-Tier Distribution Account pursuant to
clauses (ii) - (v), inclusive, of Section 3.05(b);
(v) all Yield Maintenance Charges;
(vi) all amounts deposited in the Certificate Account or
the Lower-Tier Distribution Account, as the case may
be, in error;
(vii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period
ending in (1) each January or (2) any December in a year
immediately preceding a year which is not a leap year, an
amount equal to one day of interest on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the
month
10
preceding the month in which such Distribution Date occurs
at the related Mortgage Rate to the extent such amounts are
to be deposited in the Interest Reserve Account and held for
future distribution pursuant to Section 3.25; and
(viii) all amounts received with respect to the Pari Passu
Loan that are required to be paid to the lender
thereunder pursuant to the terms of the Pari Passu
Loan, the Pari Passu Intercreditor Agreement and
Section 3.02(d) of this Agreement.
(b) if and to the extent not already included in clause (a)
hereof, the aggregate amount transferred from the REO Account
to the Certificate Account for such Distribution Date
pursuant to Section 3.16(c), less all amounts payable or
reimbursable to any Person from the Certificate Account
pursuant to clauses (ii) - (xvi), inclusive, of Section
3.05(a);
(c) the aggregate amount of any P&I Advances made by the
Servicer, the Trustee or the Fiscal Agent, as applicable, for
such Distribution Date pursuant to Section 4.03 or 7.05; and
(d) for the Distribution Date occurring in each March, the
Withheld Amounts remitted to the Lower-Tier Distribution
Account pursuant to Section 3.25(b).
Notwithstanding the investment of funds held in the Certificate Account or the
Lower-Tier Distribution Account pursuant to Section 3.06, for purposes of
calculating the Available Distribution Amount, the amounts so invested shall be
deemed to remain on deposit in such account.
"B Component": One of the five components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LB Uncertificated Interest.
"B Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the B Component Pass-Through Rate, accrued on the B Notional Amount
outstanding immediately prior to such Distribution Date commencing in the month
of the Closing Date.
"B Component Pass-Through Rate": With respect to any Distribution
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Rate of all
of the Mortgage Loans outstanding as of the first day of the related Interest
Accrual Period over (ii) the Class B Pass-Through Rate.
"B Notional Amount": With respect to any Distribution Date, an amount
equal to the Lower-Tier Principal Amount of the Class LB Uncertificated
Interest as of the preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral
11
Support Deficit losses on such Distribution Date), or the Cut-off Date in the
case of the first Distribution Date.
"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 Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Maturity Date of such
Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment on
any Mortgage Loan and with respect to any of the Class A, Class B, Class C,
Class D and Class E Certificates, a fraction (A) whose numerator is the greater
of (x) zero and (y) the difference between (i) the Pass-Through Rate on such
Class of Offered Certificates and (ii) the Yield Rate used in calculating the
Yield Maintenance Charge with respect to such Principal Prepayment and (B)
whose denominator is the difference between (i) the Mortgage Rate on the
related Mortgage Loan and (ii) the Yield Rate used in calculating the Yield
Maintenance Charge with respect to such principal prepayment; provided,
however, that under no circumstances shall the Base Interest Fraction be
greater than one. If such Yield Rate or Discount Rate, as the case may be, is
greater than the Mortgage Rate on the related Mortgage Loan, then the Base
Interest Fraction shall equal zero.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (or such
other city and state in which the Corporate Trust Office of the Trustee is
located) or Dallas, Texas (or such other city and state in which the principal
place of business of the Servicer or the Special Servicer is located) are
authorized or obligated by law or executive order to remain closed.
"C-E Component": One of the five components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LC Uncertificated Interest, the Class LD Uncertificated Interest and
the Class LE Uncertificated Interest.
"C-E Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the C-E Component Pass-Through Rate, accrued on the C-E Notional
Amount outstanding immediately prior to such Distribution Date commencing in
the month of the Closing Date.
12
"C-E Component Pass-Through Rate": With respect to any Distribution
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Rate of all
of the Mortgage Loans outstanding as of the first day of the related Interest
Accrual Period over (ii) the weighted average of (x) the Class C Pass-Through
Rate, (y) the Class D Pass-Through Rate and (z) the Class E Pass-Through Rate,
weighted on the basis of the respective Certificate Balances of such Classes
immediately prior to such Distribution Date.
"C-E Notional Amount": With respect to any Distribution Date, an
amount equal to the sum of (a) the Lower-Tier Principal Amount of the Class LC
Uncertificated Interest, (b) the Lower-Tier Principal Amount of the Class LD
Uncertificated Interest and (c) the Lower-Tier Principal Amount of the Class LE
Uncertificated Interest, in each case as of the preceding Distribution Date
(after giving effect to the distribution of principal and allocation of
Collateral Support Deficit losses on such Distribution Date), or the Cut-off
Date in the case of the first Distribution Date.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": The custodial account or accounts created and
maintained by the Servicer pursuant to Section 3.04(a) in the name of the
Trustee on behalf of the Certificateholders, into which the amounts set forth
in Section 3.04(a) shall be deposited directly. Any such account or accounts
shall be an Eligible Account.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class on the Distribution Date
immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iv)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as of
any date of determination, a fraction, expressed as a decimal carried to 8
places, the numerator of which is the then related Certificate Balance, and the
denominator of which is the related Original Certificate Balance.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any
13
consent, approval or waiver pursuant to this Agreement, any Certificate
registered in the name of the Servicer, the Special Servicer, the Depositor or
any Affiliate of either shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver has been obtained, if such consent, approval or
waiver sought from such party would in any way increase its compensation or
limit its obligations as Servicer, Special Servicer or Depositor, as
applicable, hereunder; further provided, however, that so long as there is no
Event of Default with respect to the Servicer or the Special Servicer, the
Servicer and Special Servicer shall be entitled to exercise such Voting Rights
with respect to any issue which could reasonably be believed to adversely
affect such party's compensation or increase its obligations or liabilities
hereunder; and provided further, however, that such restrictions will not apply
to the exercise of the Special Servicer's rights (if applicable) as a member of
the Controlling Class. The Trustee shall be entitled to request and rely upon a
certificate of the Servicer, the Special Servicer or the Depositor in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and the Depository Participants, except as
otherwise specified herein; provided, however, that the parties hereto shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Class": With respect to any Certificates or Uncertificated Lower-Tier
Interests, all of the Certificates or Uncertificated Lower-Tier Interests
bearing the same alphabetical (and, if applicable, numerical) Class
designation.
"Class A Certificate": Any Class A-1 or Class A-2 Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal the lesser of (a) 6.34% and (b) the Weighted Average Net
Mortgage Rate; provided, however, that for purposes of defining the Weighted
Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage Rates
of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
14
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (a) 6.44% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-3 hereto.
"Class B Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.54% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class C Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.75% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class D Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.75% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class E Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.75% and (b) the Weighted Average
Net Mortgage Rate; provided,
15
however, that for purposes of defining the Weighted Average Net Mortgage Rate
in the preceding clause (b), the Net Mortgage Rates of the Mortgage Loans shall
be determined without taking into account any reductions thereto resulting from
modifications of the Mortgage Loans or otherwise following the Cut-off Date.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class F Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-8 hereto.
"Class G Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-9 hereto.
"Class H Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class I Certificate": A Certificate designated as "Class I" on the
face thereof, in the form of Exhibit A-10 hereto.
"Class I Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
16
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-11 hereto.
"Class J Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-12 hereto.
"Class K Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average
Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net
Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class LA-1 Interest Fraction": With respect to any Distribution Date,
a fraction, the numerator of which is the A-1 Component Interest Accrual Amount
and the denominator of which is the sum of the A-1 Component Interest Accrual
Amount, the A-2 Component Interest Accrual Amount, the B Component Interest
Accrual Amount, the C-E Component Interest Accrual Amount and the F-K Component
Interest Accrual Amount.
"Class LA-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LA-2 Interest Fraction": With respect to any Distribution Date,
a fraction, the numerator of which is the A-2 Component Interest Accrual Amount
and the denominator of which is the sum of the A-1 Component Interest Accrual
Amount, the A-2 Component Interest Accrual Amount, the B Component Interest
Accrual Amount, the C-E Component Interest Accrual Amount and the F-K Component
Interest Accrual Amount.
"Class LA-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LB Interest Fraction": With respect to any Distribution Date, a
fraction, the numerator of which is the B Component Interest Accrual Amount and
the denominator of which is the sum of the A-1 Component Interest Accrual
Amount, the A-2 Component Interest Accrual Amount, the B Component Interest
Accrual Amount, the C-E Component Interest Accrual Amount and the F-K Component
Interest Accrual Amount.
17
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LC Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the C-E Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LC Uncertificated Interest and the denominator of which is the C-E
Notional Amount.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LD Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the C-E Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LD Uncertificated Interest and the denominator of which is the C-E
Notional Amount.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LE Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the C-E Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LE Uncertificated Interest and the denominator of which is the C-E
Notional Amount.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LF Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-K Component Interest
18
Accrual Amount and the denominator of which is the sum of the A-1 Component
Interest Accrual Amount, the A-2 Component Interest Accrual Amount, the B
Component Interest Accrual Amount, the C-E Component Interest Accrual Amount
and the F-K Component Interest Accrual Amount and (b) a fraction, the numerator
of which is the Lower-Tier Principal Amount of the Class LF Uncertificated
Interest and the denominator of which is the F-K Notional Amount.
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LG Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-K Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LG Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LH Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-K Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LH Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LI Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-K Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LI Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
19
"Class LI Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Statement hereto.
"Class LJ Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-K Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LJ Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LJ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LK Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-K Component Interest Accrual Amount and the denominator of which is
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount
of the Class LK Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LK Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on the
face thereof, in the form of Exhibit A-14 hereto.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date and any
Class of Regular Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b)
the aggregate amount in respect of interest actually distributed to such Class
on such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
20
"Class X Certificate": A Certificate designated as "Class X" on the
face thereof, in the form of Exhibit A-12 hereto.
"Class X Interest Accrual Amount": With respect to any Distribution
Date, the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual
Amount.
"Closing Date": June 29, 1998.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Collateral Tabulation Report": As defined in Section 4.02(a).
"Commission": The Securities and Exchange Commission.
"Component": The A-1 Component, the A-2 Component, the B Component,
the C-E Component or the F-K Component.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to the lesser of (a) 1% of the
outstanding aggregate principal balance of the Mortgage Loans as of the Closing
Date, (b) 50% of the Original Certificate Balance of such Class in the case of
the Class A, Class B, Class C, Class D and Class E Certificates and (c) 25% of
the Original Certificate Balance in the case of any other Class of Regular
Certificates. For purposes of determining the identity of the Controlling
Class, the Certificate Balance of each Class shall be deemed to be reduced by
the amount allocated to such Class of any Appraisal Reductions relating to
Mortgage Loans as to which Liquidation Proceeds or other final payment has not
yet been received. As of the Closing Date, the Controlling Class will be the
Class K Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Asset-Backed Securities Trust
Services Group - Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. Series
1998-C1, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇.
21
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan) and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer) as to which the Special Servicer
has returned servicing of such Mortgage Loan to the Servicer pursuant to
Section 3.21(a).
"Credit File": Any documents, other than documents required to be part
of the related Mortgage File, in the possession of the Servicer and relating to
the origination and servicing of any Mortgage Loan.
"CSSA": The Commercial Real Estate Secondary Market And Securitization
Association.
"CSSA Data Files": With respect to the Mortgage Loans, the files
specified in Exhibits I-9, I-10 and I-11, each in `ASCII comma delineated'
format, as modified from time to time with the consent of the Servicer and the
Trustee, which consent shall not be unreasonably withheld.
"CSSA Standard Information Package": With respect to the Mortgage
Loans, the CSSA Data Files and the CSSA Surveillance Reports, as modified from
time to time with the consent of the Servicer and the Trustee, which consent
shall not be unreasonably withheld.
"CSSA Surveillance Reports": With respect to the Mortgage Loans, the
files specified in Exhibits I-1 through I-8, each in Microsoft Corporation
Excel program format, as modified from time to time with the consent of the
Servicer and Trustee, which consent shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Mortgage Loan Seller or an Affiliate of
either of them. The Trustee shall be the initial Custodian.
"Cut-off Date": June 1, 1998.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the
related Mortgaged Property, the ratio of (i) Net Operating Income produced by
the related Mortgaged Property during such period to (ii) the aggregate amount
of Monthly
22
Payments (other than any Balloon Payment) due under such Mortgage Loan during
such period; provided, however, that with respect to the Mortgage Loans
indicated on Schedule 2, which initially pay interest only, the related Monthly
Payment will be calculated (for purposes of this definition only) to include
interest and principal (based on the amortization schedule length indicated on
Schedule 2).
"Default Interest": With respect to any defaulted Mortgage Loan for
any related Due Period, all interest accrued in respect of such Mortgage Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of the related default (exclusive of late payment charges) that is in
excess of interest at the related Mortgage Rate accrued on the unpaid principal
balance of such Mortgage Loan outstanding from time to time during such Due
Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent at least
sixty days in respect of its Monthly Payments or more than thirty days
delinquent in respect of its Balloon Payment, if any, such delinquency to be
determined in either case without giving effect to any grace period permitted
by the related Mortgage or Mortgage Note and without regard to any acceleration
of payments under the related Mortgage and Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction, in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which amount results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As defined in Section 5.01(a).
"Depositor": Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., a
Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(5) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
23
"Determination Date": With respect to any Distribution Date, the 6th
Business Day preceding such Distribution Date.
"Directing Certificateholder": The Controlling Class Certificateholder
selected by more than 50% of the Controlling Class Certificateholders, by
Certificate Balance, as certified by the Certificate Registrar from time to
time; provided, however, that (i) absent such selection, (ii) until a Directing
Certificateholder is so selected or (iii) upon receipt of a notice from a
majority of the Controlling Class Certificateholders, by Certificate Balance,
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or the performance of any construction
work on such REO Property (other than the completion of a building or
improvement, where more than 10% of the construction of such building or
improvement was completed before default became imminent), other than through
an Independent Contractor; provided, however, that the Trustee (or the Special
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Special Servicer on behalf
of the Trustee) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance or makes decisions as to repairs
or capital expenditures with respect to such REO Property or takes other
actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Discount Rate": A rate which, when compounded monthly, is equivalent
to the Yield Rate when compounded semi-annually.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the
Servicer based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause either the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or any
Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms
24
"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 Distribution
Date, as to any Class of Regular Certificates, the Accrued Certificate Interest
in respect of such Class of Regular Certificates for such Distribution Date,
reduced (to not less than zero) by an allocation to such Class of Certificates
(other than in the case of the Class X Certificates) of any Certificate
Deferred Interest for such Distribution Date.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account.
"Distribution Date": The 16th day of any month, or if such 16th 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).
"Due Date": With respect to any Distribution Date and/or any Mortgage
Loan (or REO Loan), as the case may be, the 1st day of the month in which such
Distribution Date occurs.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan (or REO Loan), the period commencing on the second day of the month
preceding the month in which such Distribution Date occurs and ending on the
first day of the month in which such Distribution Date occurs. Notwithstanding
the foregoing, in the event that the last day of a Due Period is not a Business
Day, any payments received with respect to the Mortgage Loans relating to such
Due Period on the Business Day immediately following such day shall be deemed
to have been received during such Due Period and not during any other Due
Period.
"Duff & ▇▇▇▇▇▇" or "DCR": Duff & ▇▇▇▇▇▇ Credit Rating Co., together
with its successors.
"▇▇▇▇▇": The Electronic Data Gathering and Retrieval System of the
Commission.
"Eligible Account": Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company (including
the Trustee) the long-term unsecured debt obligations of which are rated at
least (A) "AA" by DCR (or, if not rated by DCR, similarly rated by one NRSRO in
addition to ▇▇▇▇▇'▇) and (B) (1) "Aa2" by ▇▇▇▇▇'▇ if the deposits are to be
held in such account for over 180 days, (2) "Aa3" by ▇▇▇▇▇'▇ if the deposits
are to be held in such account for more than 90 days but not more than 180
days, (3) "A1" by ▇▇▇▇▇'▇ if the deposits are to be held in such account for
more than 30 days but not more than 90 days and (4) "A2" by ▇▇▇▇▇'▇ if the
deposits are to be held in such account for 30 days or less, or as has been
confirmed in writing by both Rating Agencies that such account would not cause
a downgrade of the then current ratings assigned to any of the Certificates
that are then currently being rated by them, if the deposits are to be held in
such account 30 days or more or the short-term debt obligations of which have a
short-term rating of not less than "P-1" by
25
▇▇▇▇▇'▇ and "D-1" by DCR (or, if not rated by DCR, a similar rating by one
NRSRO in addition to ▇▇▇▇▇'▇) if the deposits are to be held in such account
for less than 30 days, or such other account or accounts with respect to which
each of the Rating Agencies shall have confirmed in writing that the then
current rating assigned to any of the Certificates that are currently being
rated by such Rating Agency will not be qualified, downgraded or withdrawn by
reason thereof or (ii) a segregated trust account or accounts maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company that, in either case, has a combined capital and
surplus of at least $50,000,000 and has corporate trust powers, acting in its
fiduciary capacity, provided that any state chartered depository institution or
trust company is subject to regulation regarding fiduciary funds substantially
similar to 12 C.F.R. ss. 9.10(b). Eligible Accounts may bear interest. No
Eligible Account shall be evidenced by a certificate of deposit, passbook or
other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter, in the case of Specially
Serviced Mortgage Loans as to which the related Mortgaged Property is a
multifamily property or (ii) the American Society for Testing and Materials in
the case of Specially Serviced Mortgage Loans as to which the related Mortgaged
Property is a non-multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(d)(i)(A).
"Escrow Payment": Any payment received by the 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, including amounts for deposit to any reserve
account.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Exchange Act Report": A Current Report on Form 8-K or an Annual
Report on Form 10-K respecting the Trust Fund and/or the Certificates, and
containing as exhibits the monthly Distribution Date Statement and the CSSA
Standard Information Package and in each case under cover of the related form
required by the Exchange Act and such other information that is required or
specifically provided herein to be filed on behalf of the Trust under the
Exchange Act pursuant to Section 4.02.
26
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan allocable to the Excess Rate, including all
interest accrued thereon.
"Excess Rate": With respect to each of the Mortgage Loans indicated on
the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"F-K Component": One of the five components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-(1)(a)(2)(i)(C)) of the interest payments
on the Class LF Uncertificated Interest, the Class LG Uncertificated Interest,
the Class LH Uncertificated Interest, the Class LI Uncertificated Interest, the
Class LJ Uncertificated Interest and the Class LK Uncertificated Interest.
"F-K Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the Related Interest Accrual
Period at the F-K Component Pass-Through Rate accrued on the F-K Notional
Amount outstanding immediately prior to such Distribution Date, commencing in
the month of the Closing Date.
"F-K Component Pass-Through Rate": A rate equal to the excess, if any,
of (i) the Weighted Average Net Mortgage Rate with respect to such Distribution
Date of the Mortgage Loans of all of the Mortgage Loans outstanding as of the
first day of the related Interest Accrual Period over (ii) the weighted average
of (u) the Class F Pass-Through Rate, (v) the Class G Pass-Through Rate, (w)
the Class H Pass-Through Rate, (x) the Class I Pass-Through Rate, (y) the Class
J Pass-Through Rate and (z) the Class K Pass-Through Rate, weighted on the
basis of the respective Certificate Balances of such Classes immediately prior
to such Distribution Date.
"F-K Notional Amount": With respect to any Distribution Date, an
amount equal to the (i) the Lower-Tier Principal Amount of the Class LF
Uncertificated Interest, (ii) the Lower-Tier Principal Amount of the Class LG
Uncertificated Interest, (iii) the Lower-Tier Principal Amount of the Class LH
Uncertificated Interest, (iv) the Lower-Tier Principal Amount of the Class LI
Uncertificated Interest and (vi) the Lower-Tier Principal Amount of the Class
LK Uncertificated Interest, in each case as of the preceding Distribution Date
(after giving effect to the distribution of principal and allocation of
Collateral Support Deficit on such Distribution Date), or the Cut-off Date in
the case of the first Distribution Date.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor
thereto.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other
than a Mortgage Loan or REO Property, as the case may be, that was purchased by
the Mortgage Loan Seller pursuant to
27
Section 3.3 of the Mortgage Loan Purchase and Sale Agreement, by the Servicer,
the Special Servicer or the Controlling Class Certificateholder holding the
largest Certificate Balance of the Certificates of the Controlling Class
pursuant to Section 3.18(b), or by the Servicer, the Special Servicer, the
Controlling Class Certificateholders or the Holders of the Class LR
Certificates pursuant to Section 9.01) that there has been a recovery of all
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and
other payments or recoveries that, in the Special Servicer's judgment,
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"Fiscal Agent": ABN AMRO Bank, N.V., a Netherlands banking
corporation, and its successors and assigns.
"FNMA": Federal National Mortgage Association or any successor
thereto.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and
any substances classified as being "in inventory," "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Servicer, the
Special Servicer and any and all Affiliates thereof, (ii) does not have any
material direct financial interest in or any material indirect financial
interest in any of the Depositor, the Servicer, the Special Servicer or any
Affiliate thereof and (iii) is not connected with the Depositor, the Servicer,
the Special Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor, the Servicer, the Special Servicer or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class
of securities issued by the Depositor, the Servicer, the Special Servicer or
any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of
section 856(d)(3) of the Code if the Trust were a real estate investment trust
(except that the ownership test set forth in that Section shall be considered
to be met by any Person that owns, directly or indirectly, 35% or more of any
Class of Certificates, or such other interest in any Class of Certificates as
is set forth in an Opinion of Counsel, which shall be at no expense to the
Trustee, the Servicer or the Trust Fund, delivered to the
28
Trustee and the Servicer), so long as the Trust does not receive or derive any
income from such Person and provided that the relationship between such Person
and the Trust is at arm's length, all within the meaning of Treasury Regulation
Section 1.856-4(b)(5) (except that the Servicer or the Special Servicer shall
not be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel has been delivered to the Trustee to
that effect) or (ii) any other Person (including the Servicer and the Special
Servicer) upon receipt by the Trustee and the Servicer of an Opinion of
Counsel, which shall be at no expense to the Trustee, the Servicer or the Trust
Fund, 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.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Mortgage Loan, any fire and
hazard insurance policy with extended coverage, title policy or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan or
the related Mortgaged Property.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor, in either case, in accordance with the Servicing Standards.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates for such Distribution Date.
"Interest Reserve Account": The trust account created and maintained
by the Servicer pursuant to Section 3.25 on behalf of the Certificateholders,
into which the amounts set forth in Section 3.25 shall be deposited directly,
and which must be an Eligible Account.
"Interest Reserve Loans": The Mortgage Loans indicated on Schedule 4.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any
Holder of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade": With respect to any Certificate, ratings no lower
than "Baa3" by ▇▇▇▇▇'▇ and "BBB-" by DCR or equivalent ratings from any two
NRSROs.
29
"Investment Representation Letter": As defined in Section 5.02(b).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Due Period, whether as Monthly Payments, Insurance
and Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent
late payments or collections of principal or interest due in respect of such
Mortgage Loan (without regard to any acceleration of amounts due thereunder by
reason of default) on a Due Date in a previous Due Period and not previously
recovered. With respect to any REO Loan, all amounts received in connection
with the related REO Property during any Due Period, whether as Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of principal or interest due or deemed due in
respect of such REO Loan or the predecessor Mortgage Loan (without regard to
any acceleration of amounts due under the predecessor Mortgage Loan by reason
of default) on a Due Date in a previous Due Period and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"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 pursuant to Section 3.3 of the
Mortgage Loan Purchase and Sale Agreement; (iv) such Mortgage Loan is purchased
by the Servicer, the Special Servicer or the Controlling Class
Certificateholders pursuant to Section 3.18(b); or (v) such Mortgage Loan is
purchased by the Servicer, the Special Servicer, the Controlling Class
Certificateholders or the Holders of the Class LR Certificates pursuant to
Section 9.01. With respect to any REO Property (and the related REO Loan), any
of the following events: (i) a Final Recovery Determination is made with
respect to such REO Property or (ii) such REO Property is purchased by the
Controlling Class Certificateholders, the Servicer, the Special Servicer or the
Holders of the Class LR Certificates pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with respect
to each Specially Serviced Mortgage Loan as to which the Special Servicer
receives a full or discounted payoff with respect thereto from the related
Mortgagor or any Liquidation Proceeds with respect thereto, equal to the
product of the Liquidation Fee Rate and the proceeds of such full or discounted
payoff or the Liquidation Proceeds (net of the costs and expenses associated
with the related liquidation) related to such liquidated Specially Serviced
Mortgage Loan, as the case may be; provided, however, that no Liquidation Fee
shall be payable with respect to clauses (iii)-(v) of the definition of
Liquidation Proceeds.
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received or paid by the Servicer in
connection with: (i) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Mortgage Loan,
30
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; (ii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iii) the purchase of a Defaulted
Mortgage Loan by the Servicer, the Special Servicer or the Controlling Class
Certificateholders pursuant to Section 3.18(b) or any other sale thereof
pursuant to Section 3.18(c); (iv) the repurchase of a Mortgage Loan by the
Mortgage Loan Seller pursuant to Section 3.3 of the Mortgage Loan Purchase and
Sale Agreement; or (v) the purchase of a Mortgage Loan or REO Property by the
Controlling Class Certificateholders, the Special Servicer or the Holders of
the Class LR Certificates pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator
of which is the scheduled principal balance of such Mortgage Loan at the time
of determination (assuming no defaults on or Principal Prepayments of the
Mortgage Loans), and the denominator of which is the Original Value of the
related Mortgaged Property.
"Lomas Santa Fe Mortgage Loan": The Mortgage Loan designated as
Mortgage Loan ID number 9119 on the Mortgage Loan Schedule.
"Lower-Tier Distribution Account": The segregated account or accounts
(or sub-account) created and maintained by the Trustee pursuant to Section
3.04(c) in trust for the Certificateholders, which shall be entitled LaSalle
National Bank, as Trustee, in trust for the registered Holders of Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series ▇▇▇▇-▇▇, ▇▇▇▇▇-▇▇▇▇ Distribution Account". Any such
account or accounts (or sub-account) shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iv)).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Mortgage Loans, any REO Property with
respect thereto, such amounts as shall from time to time be held in the
Certificate Account, the REO Account, if any, and the Lower-Tier Distribution
Account, and all other property included in the Trust Fund that is not in the
Upper-Tier REMIC.
"MAI": Member of the Appraisal Institute.
31
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note or Mortgage Notes, after taking into
account all Principal Prepayments received prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan by reason of default thereunder, (ii) any grace period permitted
by the related Mortgage Note or Mortgage Notes, or (iii) any modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the Servicer
or the Special Servicer pursuant to Section 3.20 occurring prior to such date
of determination.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under
the related Mortgage Note and applicable law, without regard to any
acceleration of principal of such Mortgage Loan by reason of default thereunder
or any modification, waiver or amendment of such Mortgage Loan granted or
agreed to by the Servicer or the Special Servicer pursuant to Section 3.20.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
successors thereto.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as of
any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate, the excess, if any, of (a) interest
accrued on the Stated Principal Balance thereof during the one-month interest
accrual period set forth in the related Mortgage Note at the related Mortgage
Rate over (b) the interest portion of the related Monthly Payment, as so
modified or reduced, or, if applicable, the Assumed Scheduled Payment due on
such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) each original Mortgage Note, bearing, or accompanied by,
all prior and intervening endorsements or assignments showing a
complete chain of endorsement or assignment from the originator of the
Mortgage Loan to the Mortgage Loan Seller, and further endorsed (at
the direction of the Depositor given pursuant to the Mortgage Loan
Purchase and Sale Agreement), on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the
following form: "Pay to the order of LaSalle National Bank, as trustee
for the registered Holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates, Series
1998-C1, without recourse, representation or warranty, express or
implied";
(ii) the original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies
from the applicable recording office) of any intervening assignments
thereof showing a complete chain of assignment from the
32
originator of the Mortgage Loan to the Mortgage Loan Seller, in each
case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, to LaSalle National Bank, as trustee for the registered Holders
of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 1998-C1";
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan
to the Mortgage Loan Seller, in each case with evidence of recording
thereon;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller in favor of the
Trustee (in such capacity);
(vi) an original or copy of any related Security Agreement
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan
to the Mortgage Loan Seller, in each case with evidence of recording
thereon;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller in favor of the
Trustee (in such capacity);
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof effective as of the date of the recordation of the Mortgage
Loan, together with all endorsements or riders that were issued with
or subsequent to the issuance of such policy, insuring the priority of
the Mortgage as a first lien on the Mortgagor's fee interest in the
Mortgaged Property, or if the policy has not yet been issued, an
original or copy of a written commitment, interim binder or the
proforma title insurance policy, dated as of the date on which the
related Mortgage Loan was funded;
(x) the original or a copy of any guaranty of the obligations
of the Mortgagor under the Mortgage Loan;
33
(xi) all UCC Financing Statements and continuation statements
or copies thereof sufficient to perfect (and maintain the perfection
of) the security interest held by the originator of the Mortgage Loan
(and each assignee prior to the Trustee) in and to the personalty of
the Mortgagor at the Mortgaged Property (in each case with evidence of
filing thereon), and to transfer such security interest to the
Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, any Mortgage Note or other document or instrument referred
to above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt
that is subordinate to such Mortgage Loan, a subordination agreement,
pursuant to which such Additional Debt is subordinated to such
Mortgage Loan, and with respect to the Lomas Santa Fe Mortgage Loan,
the Pari Passu Intercreditor Agreement, a copy of the note evidencing
the Pari Passu Loan and a copy of the Pari Passu LC; and
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents actually received by the Trustee, or a Custodian appointed thereby,
such term shall not be deemed to include such documents and instruments
required to be included therein unless they are actually so received.
"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; it being understood that the Pari Passu Loan is not a Mortgage Loan. As
used herein, the term "Mortgage Loan" includes each related Mortgage Note, the
related Mortgage and other documents contained in the related Mortgage File and
any related agreements.
"Mortgage Loan Purchase and Sale Agreement": The agreement between the
Depositor and the Mortgage Loan Seller, relating to the transfer of all of the
Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan i.d. number (as specified in Annex A to the
Prospectus);
(ii) the name of the related Mortgaged Property;
(iii) the street address (including city, state and zip code)
of the related Mortgaged Property;
34
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b)
remaining term to stated maturity and (c) Maturity Date;
(ix) the Anticipated Repayment Date, and the Revised Rate,
if applicable;
(x) the original amortization term;
(xi) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xii) the Original Value of the related Mortgaged Property;
(xiii) the Loan-to-Value Ratio at the Cut-off Date;
(xiv) the Underwritten Debt Service Coverage Ratio and each
of the financial components of the related Underwritten Debt Service
Coverage Ratio;
(xv) the applicable Servicing Fee Rate;
(xvi) whether the Mortgage Loan is an Actual/360 Mortgage
Loan; and
(xvii) whether the Mortgage Loan is a 30/360 Mortgage Loan.
Such Mortgage Loan Schedule shall also set forth the aggregate of the
amounts described under clause (vii) above 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": Bear, ▇▇▇▇▇▇▇ Funding, Inc., a Delaware
corporation or its successors in interest.
"Mortgage Note": The original executed note evidencing all or a
portion of the indebtedness of a Mortgagor under a Mortgage Loan, together with
any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior to
its 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 related Mortgage Note and
35
applicable law, exclusive of the Excess Rate; (ii) any Mortgage Loan after its
Maturity Date, the annualized rate described in clause (i) above determined
without regard to the passage of such Maturity Date; provided, however, for
purposes of the preceding clause (i) and (ii) that if any Mortgage Loan does
not accrue interest on the basis of a 360-day year consisting of twelve 30-day
months, then, solely for purposes of calculating the Class X Pass-Through Rate
and the limit on the Pass-Through Rate of each other Class of Regular
Certificates contained in the proviso to the definition of the Pass-Through
Rate for each Class Regular Certificates (other than the Class X Certificates),
the Mortgage Rate of such Mortgage Loan for any one-month period preceding a
related Due Date will be the annualized rate at which interest would have to
accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related
Mortgage Rate; further provided, that with respect to each Interest Reserve
Loan, the Mortgage Rate for the one month period (A) preceding the Due Dates
that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap
year, and (B) preceding the Due Date in March, will be the per annum rate
stated in the related Mortgage Note or Mortgage Notes and (iii) any REO Loan,
the annualized rate described in clause (i) or (ii), as applicable, above
determined as if the predecessor Mortgage Loan had remained outstanding.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"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 Investment Earnings": With respect to either the Certificate
Account, the Distribution Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding Servicer Remittance Date, the
amount, if any, by which the aggregate of all interest and other income
realized during such period on funds relating to the Trust Fund held in such
account, exceeds the aggregate of all losses, if any, incurred during such
period in connection with the investment of such funds in accordance with
Section 3.06.
"Net Investment Loss": With respect to either the Certificate Account,
the Distribution Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding Servicer Remittance Date, the
amount by which the aggregate of all losses, if any, incurred during such
period in connection with the investment of funds relating to the Trust Fund
held in such account in accordance with Section 3.06, exceeds the aggregate of
all interest and other income realized during such period on such funds.
"Net Mortgage 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 minus the Servicing Fee Rate.
36
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, the total operating revenues derived from such
Mortgaged Property during such period, minus the total operating expenses
incurred in respect of such Mortgaged Property during such period, other than
(i) non-cash items such as depreciation, (ii) amortization, (iii) actual
capital expenditures and (iv) debt service on the related Mortgage Loan.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
judgment of the Servicer, the Trustee or the Fiscal Agent, as applicable, will
not be ultimately recoverable, together with any accrued and unpaid interest
thereon, from Late Collections or any other recovery on or in respect of such
Mortgage Loan or REO Loan. The determination by the Servicer, the Trustee or
the Fiscal Agent, as applicable, 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 to the
Trustee and the Depositor, in the case of the Servicer or the Fiscal Agent, and
to the Depositor, in the case of the Trustee. The Officer's Certificate shall
set forth such determination of nonrecoverability and the considerations of the
Servicer, the Trustee or Fiscal Agent, as applicable, forming the basis of such
determination (which shall include but shall not be limited to information, to
the extent available, such as related income and expense statements, rent
rolls, occupancy status and property inspections, and shall include an
Appraisal of the related Mortgage Loan or Mortgaged Property, the cost of which
Appraisal shall be advanced by the Servicer or the Trustee or Fiscal Agent, as
applicable, as a Servicing Advance). The Trustee shall be entitled to
conclusively rely on the Servicer's determination that a P&I Advance is
nonrecoverable and the Fiscal Agent shall be entitled to conclusively rely on
the Servicer's and/or Trustee's determination that a P&I Advance is
nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property
which, in the judgment of the Servicer, the Trustee or the Fiscal Agent, as the
case may be, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon, from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Property. The determination by the
Servicer, the Trustee or the Fiscal Agent, as the case may be, 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 to the Trustee, the Depositor and the
Fiscal Agent, in the case of the Servicer, and to the Depositor and the Fiscal
Agent, in the case of the Trustee. The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the Servicer,
the Trustee or the Fiscal Agent, as applicable, forming the basis of such
determination (which shall
37
include but shall not be limited to information, to the extent available, such
as related income and expense statements, rent rolls, occupancy status and
property inspections, and shall include an Appraisal of the related Mortgage
Loan or Mortgaged Property, the cost of which Appraisal shall be advanced by
the Servicer or the Trustee or Fiscal Agent, as applicable, as a Servicing
Advance). The Trustee will be entitled to conclusively rely on the Servicer's
determination that a Servicing Advance is nonrecoverable and the Fiscal Agent
shall be entitled to conclusively rely on the Servicer's and/or the Trustee's
determination that a Servicing Advance is nonrecoverable.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X, Class F, Class G, Class H, Class I, Class J, Class
K, Class R or Class LR Certificate.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form 4224 or (ii) the
Transferee delivers to both the Transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that such Transfer
is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such Transfer of the Residual Certificate will
not be disregarded for federal income tax purposes.
"Notional Amount": The A-1 Component Notional Amount, the A-2
Component Notional Amount, the B Component Notional Amount, the C-E Component
Notional Amount or the F-K Notional Amount, as the case may be.
"NRSRO": A nationally recognized statistical rating organization.
"Offered Certificates": The Class A, Class B, Class C, Class D and
Class E Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee or the Fiscal Agent, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the Upper-Tier REMIC or
Lower-Tier REMIC as a REMIC, (b) compliance with the REMIC Provisions, or (c)
the resignation of the Servicer, the Special Servicer or the Depositor pursuant
to Section 6.04, must be an opinion of counsel who is in fact Independent of
the Depositor, the Servicer or the Special Servicer, as applicable.
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
38
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the A-1 Component, the A-2
Component, the B Component, the C-E Component or the F-K Component, the
respective initial aggregate Notional Amount thereof as of the Closing Date, in
each case as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"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.
"P&I Advance": As to any Mortgage Loan or REO Loan or the Pari Passu
Loan, any advance made by the Servicer, the Trustee or the Fiscal Agent, as
applicable, pursuant to Section 4.03 or Section 7.05.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Second Business Day prior to such Distribution Date.
"Pari Passu Intercreditor Agreement": That certain intercreditor
agreement, dated June 29, 1998 by and between the Mortgage Loan Seller and the
initial holder of the Pari Passu Loan relating to the relative rights of the
holder of the Pari Passu Loan and the holder of the Lomas Santa Fe Mortgage
Loan.
"Pari Passu LC": A $2,500,000 letter of credit issued by Bank of
America that may be drawn and applied to the repayment of the Pari Passu Loan
if the conditions to mandatory prepayment of the Pari Passu Loan contained in
the Pari Passu Loan documentation are satisfied.
"Pari Passu Loan": A mortgage loan in the principal amount of
$2,500,000, which is secured by the Pari Passu Mortgage on a pari passu basis
with the Lomas Santa Fe Mortgage Loan pursuant to the terms of the Pari Passu
Intercreditor Agreement.
"Pari Passu Mortgage": The Mortgage securing the Lomas Santa Fe
Mortgage Loan and the Pari Passu Loan.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the Class
A-2 Pass-Through Rate, the Class B Pass-Through Rate, the Class C Pass-Through
Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate, the Class F
Pass-Through Rate, the Class G Pass-Through Rate, the Class H Pass-Through
Rate, the Class I Pass-Through Rate, the Class
39
J Pass-Through Rate, the Class K Pass-Through Rate, the A-1 Component
Pass-Through Rate, the A-2 Component Pass-Through Rate, the B Component
Pass-Through Rate, the C-E Component Pass-Through Rate and the F-K Component
Pass-Through Rate.
"Paying Agent": The paying agent appointed pursuant to Section 5.06.
"Penalty Charges": With respect to any Mortgage Loan (or successor REO
Loan), any amounts actually collected thereon from the Mortgagor that represent
late payment charges or Default Interest, other than a Yield Maintenance Charge
or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Regular Certificate, the percentage interest
is equal to the Denomination of such Certificate divided by the Original
Certificate Balance or initial Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate,
the Percentage Interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations
or securities, regardless of whether issued by the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition:
(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United States
of America, FNMA, FHLMC or any agency or instrumentality of the United
States of America, the obligations of which are backed by the full
faith and credit of the United States of America that mature in one
year or less after the date of issuance; provided that any obligation
of, or guarantee by, FNMA or FHLMC, other than an unsecured senior
debt obligation of FNMA or FHLMC, shall be a Permitted Investment only
if such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in 1 year or less after the date of
issuance and are issued or held by any depository institution or trust
company (including the Trustee) incorporated or organized under the
laws of the United States of America or any State thereof and subject
to supervision and examination by federal or state banking
authorities, so long as the commercial paper or other short-term debt
obligations of such depository institution or trust company are rated
at least "P-1" by ▇▇▇▇▇'▇ and "D-1+" by DCR (or, if not rated by DCR,
similarly rated by one NRSRO in addition to ▇▇▇▇▇'▇) or such other
rating as would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate, as evidenced in writing;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has a
remaining maturity of 1 year or less and
40
where such repurchase obligation has been entered into with a
depository institution or trust company (acting as principal)
described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one year or
less from the date of issuance, which debt obligations are rated at
least "AAA" by DCR (or, if not rated by DCR, similarly rated by one
NRSRO in addition to ▇▇▇▇▇'▇) and either (A) are rated "P-1" by
▇▇▇▇▇'▇ or (B) have the following long-term ratings from ▇▇▇▇▇'▇ (1)
"Aaa" if such obligations mature in more than 180 days from the date
of issuance, (2) "Aa3" if such obligations mature in more than 90 days
but less than 180 days from the date of issuance, (3) "Aa2" if such
obligations mature in 90 days from the date of issuance and (4) "A2"
if such obligations mature in 30 days or less from the date of
issuance, or such other rating as would not result in the downgrading,
withdrawal or qualification of the then-current rating assigned by
each Rating Agency to any Certificate as specified in writing by each
of the Rating Agencies; provided, however, that securities issued by
any particular corporation will not be Permitted Investments to the
extent that investment therein will cause the then-outstanding
principal amount of securities issued by such corporation and held in
the accounts established hereunder to exceed 10% of the sum of the
aggregate principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) payable on
demand or on a specified date maturing in 1 year or less after the
date of issuance thereof and which is rated at least "P-1" by ▇▇▇▇▇'▇
and "D-1+" by DCR (or, if not rated by DCR, similarly rated by one
NRSRO in addition to ▇▇▇▇▇'▇);
(vi) money market funds, rated "Aaa" by ▇▇▇▇▇'▇ and rated
"AAA" by DCR (or, if not rated by DCR, similarly rated by one NRSRO in
addition to ▇▇▇▇▇'▇); and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being rated
by such Rating Agency and (b) which qualifies as a "cash flow
investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that no such instrument shall be a Permitted Investment (a)
if such instrument evidences principal and interest payments derived from
obligations underlying such instrument and the interest payments with respect
to such instrument provide a yield to maturity at the time of acquisition of
greater than 120% of the yield to maturity at par of such underlying
obligations or (b) if such instrument may be redeemed at a price below the
purchase price;provided, further, that no amount beneficially owned by either
the Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet deposited in the
Trust) may be invested in investments
41
(other than money market funds) treated as equity interests for federal income
tax purposes, unless the Servicer receives an Opinion of Counsel, at its own
expense, to the effect that such investment will not adversely affect the
status of either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC under
the Code or result in the imposition of a tax on such Upper-Tier REMIC or
Lower-Tier REMIC. Permitted Investments that are subject to prepayment or call
may not be purchased at a price in excess of par.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Placement Agent": Bear, ▇▇▇▇▇▇▇ & Co. Inc.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount, market discount and
premium, if any, on the Certificates for federal income tax purposes, assuming
that each Mortgage Loan with an Anticipated Repayment Date prepays on such
date.
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (a) the Scheduled Principal Distribution
Amount for such Distribution Date, (b) the Unscheduled Principal Distribution
Amount for such Distribution Date and (c) the Principal Shortfall for such
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 representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date, the amount, if any, by which (a) the related Principal
Distribution Amount for the preceding Distribution Date, exceeded (b) the
aggregate amount distributed in respect of principal on the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J and
Class K Certificates for such preceding Distribution Date pursuant to Section
4.01(a) on such preceding Distribution Date. The Principal Shortfall for the
initial Distribution Date will be zero.
"Prospectus": The Prospectus dated May 26, 1998, as supplemented by
the Prospectus Supplement dated June 10, 1998 relating to the offering of the
Offered Certificates.
"Purchase Price": With respect to any Mortgage Loan to be purchased by
the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase and Sale
Agreement, by the Servicer, the Special Servicer or the Controlling Class
Certificateholders pursuant to Section 3.18(b), or by the Servicer, the Special
Servicer, the Controlling Class Certificateholders or the Holders of the
42
Class LR Certificates pursuant to Section 9.01 or to be otherwise sold pursuant
to Section 3.18(c), a price equal to:
(i) the outstanding principal balance of such Mortgage
Loan as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan at
the related Mortgage Rate in effect from time to time to but not
including the Due Date in the Due Period of purchase; plus
(iii) all related unreimbursed Servicing Advances and accrued
and unpaid interest on related Advances at the Reimbursement Rate
(except where the Servicer is the purchaser), and unpaid Special
Servicing Fees allocable to such Mortgage Loan; plus
(iv) if such Mortgage Loan is being purchased by the Mortgage
Loan Seller pursuant to Section 3.3 of the Mortgage Loan Purchase and
Sale Agreement, all reasonable out-of-pocket expenses reasonably
incurred or to be incurred by the Servicer, the Special Servicer, the
Depositor and the Trustee in respect of the Breach or Defect giving
rise to the repurchase obligation, including any expenses arising out
of the enforcement of the repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum insurance financial strength rating of at least "Baa2" by ▇▇▇▇▇'▇ and a
minimum claims paying ability rating of at least "A" by DCR, or, if not rated
by either, as has been confirmed in writing by each would not cause a downgrade
of the then current ratings assigned to any of the Certificates that are then
currently being rated by them and (ii) with respect to the fidelity bond and
errors and omissions Insurance Policy required to be maintained pursuant to
Section 3.07(c), an insurance company that has (A) an insurance financial
strength rating by ▇▇▇▇▇'▇ that is no lower than two ratings below the rating
assigned to the then highest rated outstanding Certificate, but in no event
lower than "Baa2", and that has a claims paying ability rating of at least "A"
by DCR (or, if not rated by DCR, similarly rated by one NRSRO in addition to
▇▇▇▇▇'▇), or, in the case of clauses (i) and (ii), such other rating as each
Rating Agency shall have confirmed in writing will not cause such Rating Agency
to downgrade, qualify or withdraw the then-current rating assigned to any of
the Certificates that are then currently being rated by such Rating Agency.
"Rated Final Distribution Date": As to each Class of Certificates,
June 16, 2030, the first Distribution Date after the 24th month following the
end of the amortization term for
43
the Mortgage Loan that, as of the Cut-off Date, has the longest remaining
amortization term (other than the interest only Mortgage Loans).
"Rating Agency": Each of ▇▇▇▇▇'▇ and DCR or their respective
successors in interest. If neither such rating agency nor any successor remains
in existence, "Rating Agency" shall be deemed to refer to such other NRSRO or
other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Fiscal Agent, the Servicer and
the Special Servicer, and specific ratings of ▇▇▇▇▇'▇ and DCR herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I, Class J, Class K and Class X
Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money Rates" section of the New York edition
of "The Wall Street Journal" (or, if such section or publication is no longer
available, such other comparable publication as determined by the Trustee in
its reasonable discretion) as may be in effect from time to time, or, if the
"Prime Rate" no longer exists, such other comparable rate (as determined by the
Trustee in its reasonable discretion) as may be in effect from time to time.
"Related Certificates" and "Related Uncertificated Lower-Tier
Interest": For the following Classes of Uncertificated Lower-Tier Interests,
the related Class of Certificates set forth below and for the following Classes
of Certificates, the related Class of Uncertificated Lower-Tier Interests set
forth below:
Related Uncertificated
Related Certificate Lower-Tier Interest
------------------- ----------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class I Certificate Class LI Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
44
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and temporary and final Treasury Regulations (or proposed regulations that
would apply by reason of their proposed effective date to the extent not
inconsistent with temporary or final regulations) and any rulings promulgated
thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts (or
subaccounts) created and maintained by the Special Servicer pursuant to Section
3.16 on behalf of the Trustee in trust for the Certificateholders, which shall
be entitled "AMRESCO Management, Inc., as Special Servicer, in trust for
registered Holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, REO Account."
Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes of
any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the
Trust Fund, as providing for Assumed Scheduled Payments on each Due Date
therefor, and otherwise as having the same terms and conditions as its
predecessor Mortgage Loan, including, without limitation, with respect to the
calculation of the Mortgage Rate in effect from time to time (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan). Each REO Loan shall be deemed to have an initial outstanding
principal balance and Stated Principal Balance equal to the outstanding
principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan as of the date of the related REO Acquisition. All
amounts due and owing in respect of the predecessor Mortgage Loan as of the
date of the related REO Acquisition, including, without limitation, accrued and
unpaid interest, shall continue to be due and owing in respect of an REO Loan.
All amounts payable or reimbursable to the Servicer, the Special Servicer, the
Fiscal Agent or the Trustee, as applicable, in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Special Servicing Fees and Servicing Fees and any
unreimbursed Advances, together with any interest accrued and payable to the
Servicer, the Fiscal Agent or the Trustee in respect of such
45
Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue
to be payable or reimbursable to the Servicer, the Special Servicer, the
Trustee or the Fiscal Agent in respect of an REO Loan. Collections in respect
of each REO Loan (exclusive of amounts to be applied to the payment of, or to
be reimbursed to the Servicer or the Special Servicer for the payment of, the
costs of operating, managing and maintaining the related REO Property) shall be
treated: first, as a recovery of accrued and unpaid interest on such REO Loan
at the related Mortgage Rate in effect from time to time to but not including
the Due Date in the Due Period of receipt; second, as a recovery of principal
of such REO Loan to the extent of its entire unpaid principal balance; and
third, in accordance with the Servicing Standards, as a recovery of any other
amounts due and owing in respect of such REO Loan, including, without
limitation, (i) Yield Maintenance Charges and Penalty Charges and (ii) Excess
Interest and other amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of, and in the name of, the Trustee for the benefit of the
Certificateholders through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of the
Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial Trustee
or Fiscal Agent, any vice president, assistant vice president, corporate trust
officer or assistant corporate trust officer in the Asset-Backed Securities
Trust Services Group of LaSalle National Bank or ABN AMRO Bank N.V., as the
case may be, and with respect to any successor Trustee or Fiscal Agent, any
officer in the corporate trust department of the Trustee or Fiscal Agent, as
the case may be, or any other officer of the Trustee or Fiscal Agent
customarily performing functions similar to those performed by any of the above
designated officers to whom a particular matter is referred by the Trustee or
Fiscal Agent because of such officer's knowledge of and familiarity with the
particular subject.
"Review Fee": With respect to any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) with respect to which the Special Servicer
consents (or is deemed to consent) to an assumption, a fee payable to the
Special Servicer (from amounts received from the related Mortgagor) pursuant to
Section 3.11(b) in an amount equal to $2,500.
46
"Revised Rate": With respect to the Mortgage Loans, the increased
interest rate after the Anticipated Repayment Date (in the absence of a
default) for each applicable Mortgage Loan, as calculated and as set forth in
the related Mortgage Loan.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the principal portions of (a) all Monthly
Payments (excluding Balloon Payments) due in respect of the Mortgage Loans
during or, if and to the extent not previously received or advanced pursuant to
Section 4.03 in respect of a preceding Distribution Date, prior to the related
Due Period, and all Assumed Scheduled Payments for the related Due Period, in
each case to the extent either (i) paid by the Mortgagor as of the Business Day
preceding the related Servicer Remittance Date (and not previously distributed
to Certificateholders) or (ii) advanced by the Servicer. the Trustee or the
Fiscal Agent, as applicable, pursuant to Section 4.03 in respect of such
Distribution Date, and (b) all Balloon Payments to the extent received during
the related Due Period, and to the extent not included in clause (a) above.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage
or executed separately, creating in favor of the holder of such Mortgage a
security interest in the personal property constituting security for repayment
of such Mortgage Loan.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Certificate Balance of the Class
A-1 Certificates and the Class A-2 Certificates, without giving effect to any
distributions in respect of principal on such Distribution Date, exceeds the
sum of (a) the aggregate Stated Principal Balance of the Mortgage Loans that
will be outstanding immediately following such Distribution Date and (b) the
portion of the Available Distribution Amount for such Distribution Date that
will remain after the distribution of interest has been made on the Class A
Certificates on such Distribution Date.
"Servicer": Banc One Mortgage Capital Markets, LLC, a Delaware limited
liability company, and its successor in interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicer Remittance Date": With respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Servicer, the Trustee or the Fiscal Agent,
as applicable, in connection with the servicing and administering of (a) a
Mortgage Loan in respect of which a default, delinquency or other unanticipated
event has occurred or as to which a default is reasonably foreseeable or (b) an
47
REO Property, including, but not limited to, the cost of (i) compliance with
the Servicer's obligations set forth in Section 3.03(c), (ii) the preservation,
restoration and protection of a Mortgaged Property, (iii) obtaining any
Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature
described in clauses (i) - (iv) of the definition of "Liquidation Proceeds,"
(iv) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including foreclosures, and (v) the operation, leasing, management,
maintenance and liquidation of any REO Property.
"Servicing Fee": With respect to each Mortgage Loan and REO Loan, the
fee payable to the Servicer pursuant to the first paragraph of Section 3.11(a).
"Servicing Fee Rate": With respect to any Distribution Date and each
Mortgage Loan other than the Mortgage Loans designated as Mortgage Loan ID
numbers 4950, 6041, 6042, 6284, 8497, 8666, 8749, 8785, 8874, 9002, 9173, 9204,
9329, 9330, 9331, 9332 and 9333 on the Mortgage Loan Schedule, a rate equal to
0.055% per annum computed on the basis of the Stated Principal Balance of the
related Mortgage Loan as of the immediately preceding Distribution Date (in
each case, after giving effect to the distribution of principal of such
Mortgage Loan on such Distribution Date), and with respect to any Distribution
Date and (i) the Mortgage Loans designated as Mortgage Loan ID numbers 4950,
6041, 6042, 6284, 8497, 8666, 8749, 8785, 8874, 9002, 9173, 9204, 9329, 9330,
9331, 9332 and 9333 on the Mortgage Loan Schedule and (ii) the Pari Passu Loan,
a rate equal to 0.08% per annum computed on the Stated Principal Balance of the
related Mortgage Loan as of the immediately preceding Distribution Date (in
each case, after giving effect to the distribution of principal of such
Mortgage Loan on such Distribution Date).
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by the Servicer and the Special Servicer
to the Trustee and the Depositor on the Closing Date, as such list may be
amended from time to time thereafter.
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) a payment default shall have occurred on such Mortgage
Loan at its original maturity date, or if the maturity date of such
Mortgage Loan has been extended, a payment default occurs on such
Mortgage Loan at its extended maturity date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60
days or more delinquent; or
48
(iii) the date upon which the Servicer determines that a
payment default has occurred or is imminent or is reasonably likely to
occur and is not likely to be cured by the related Mortgagor within 60
days; or
(iv) the date upon which a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises in
an involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law or the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs being entered
against the related Mortgagor; provided, however, that if such decree
or order is discharged or stayed within 60 days of being entered, such
Mortgage Loan shall not be a Specially Serviced Mortgage Loan (and no
Special Servicing Fees, Workout Fees or Liquidation Fees will be
payable with respect thereto); or
(v) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or relating to all
or substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vii) a default of which the Servicer has notice (other than
a failure by such Mortgagor to pay principal or interest) and which in
the opinion of the Servicer materially and adversely affects the
interests of the Certificateholders has occurred and remained
unremedied for the applicable grace period specified in such Mortgage
Loan (or if no grace period is specified, 60 days); or
(viii) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property.
"Similar Law": As defined in Section 5.02 (c).
"Special Servicer": AMRESCO Management, Inc., a Texas corporation, or
any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan and the Pari Passu Loan, 0.25% per annum
computed on the basis of the
49
Stated Principal Balance of the related Mortgage Loan and on the basis of a
360-day year with twelve 30-day months.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.10(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any Mortgage Deferred Interest added to
the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received from the
Mortgagor or advanced by the Servicer and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination; and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation that occurred
prior to the end of the Due Period for the most recent Distribution
Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with
respect to the predecessor Mortgage Loan on or after the date of the
related REO Acquisition, to the extent distributed to
Certificateholders on or before such date of determination; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect
to such REO Loan, to the extent distributed to Certificateholders on
or before such date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of the Trust
Fund and to have an outstanding Stated Principal Balance greater than zero
until the Distribution Date on which the payments or other proceeds, if any,
received in connection with a Liquidation Event in respect thereof are to be
(or, if no such payments or other proceeds are received in connection
50
with such Liquidation Event, would have been) distributed to
Certificateholders, following which Distribution Date, the Stated Principal
Balance of such Mortgage Loan will be zero.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I, Class J or Class K Certificate.
"Sub-Servicer": Any Person with which the Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Servicer
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, 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, state or local tax laws.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such on the
Mortgage Loan Schedule.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, 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 after the Cut-off Date (other than payments of
principal and interest due and payable on such Mortgage Loans on or before the
Cut-off Date), together with all documents included in the related Mortgage
Files; (ii) such
51
funds or assets as from time to time are deposited in the Certificate Account,
the Distribution Accounts, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Mortgage Loans and (v) the rights of the
Depositor under Sections 2, 3.2, 3.3, 3.6 and 5 of the Mortgage Loan Purchase
and Sale Agreement.
"Trustee": LaSalle National Bank, a national bank chartered under the
laws of the United States of America, in its capacity as trustee and its
successors in interest, or any successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, the fee to be paid to the Trustee pursuant to Section 8.05
as compensation for the Trustee's activities under this Agreement. The Trustee
Fee shall be paid by the Servicer on each Distribution Date.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class ▇▇-▇, ▇▇▇▇▇
▇▇-▇, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH,
Class LI, Class LJ and Class LK Uncertificated Interests.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan, the ratio of (i) Underwritten Net Cash Flow with respect to the
related Mortgaged Property to (ii) the aggregate amount of the Monthly Payments
due for the 12-month period immediately following the Cut-off Date, except with
respect to those Mortgage Loans identified on Schedule 2 where Monthly Payments
initially pay interest only, but for purposes of this definition only, shall be
assumed to include interest and principal (based upon the amortization schedule
length indicated on Schedule 2).
"Underwritten Net Cash Flow": With respect to any Mortgage Loan, the
estimated annual revenue derived from the use and operation of such Mortgaged
Property, less estimated annual expenses, including operating expenses (such as
utilities, administrative expenses, repairs and maintenance, management fees
and advertising), fixed expenses (such as insurance and real estate taxes) and
any applicable reserves.
"Underwriter": Bear, ▇▇▇▇▇▇▇ & Co. Inc.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
52
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of:
(a) all Principal Prepayments received on the Mortgage
Loans during the related Due Period; and
(b) the principal portions of all Liquidation Proceeds,
Insurance and Condemnation Proceeds and, if applicable, REO Revenues
received with respect to the Mortgage Loans and any REO Loans during
the related Due Period, but in each case only to the extent that such
principal portion represents a recovery of principal for which no
advance was previously made pursuant to Section 4.03 in respect of a
preceding Distribution Date.
"Upper-Tier Distribution Account": The segregated account or accounts
(or sub-account) created and maintained by the Trustee pursuant to Section
3.04(c) in trust for the Certificateholders, which shall be entitled LaSalle
National Bank, as Trustee, in trust for the registered Holders of Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1998-C1, Upper-Tier Distribution Account". Any such
account or accounts (or subaccount) shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, an estate whose income is
subject to United States federal income tax regardless of its source or a trust
if a court within the United States is able to exercise primary supervision
over the administration of such trust, and one or more such U.S. Persons have
the authority to control all substantial decisions of such trust, (or, to the
extent provided in applicable Treasury Regulations, certain trusts in existence
on August 20, 1996 which are eligible to be treated as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates, and (ii) in the case of any other Class of Regular Certificates a
percentage equal to the product of 96% and a fraction, the numerator of which
is equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates, each determined as of the Distribution Date immediately
preceding such time. Neither the Class R Certificates nor the Class LR
Certificates will be entitled to any Voting Rights. For purposes of determining
Voting Rights, the Certificate Balance of any Class shall be deemed to be
reduced by the amount allocated to such Class of
53
any Appraisal Reductions related to Mortgage Loans as to which Liquidation
Proceeds or other final payment has not yet been received. Voting Rights
allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates.
"Weighted Average Net Mortgage Rate": With respect to any Distribution
Date, the weighted average of the applicable Net Mortgage Rates of the Mortgage
Loans as of the first day of the related Interest Accrual Period, weighted on
the basis of their respective Stated Principal Balances as of the preceding
Distribution Date (after giving effect to the distribution of principal on such
Distribution Date), or, in the case of the first Distribution Date, the Cut-off
Date.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection of interest and
principal, including (i) Monthly Payments, (ii) Balloon Payments and (iii)
payments (other than those included in clause (i) or (ii) of this definition)
at maturity, received on each Corrected Mortgage Loan for so long as it remains
a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan, the
yield maintenance charge set forth in the related Mortgage Loan documents.
"Yield Rate": With respect to any Mortgage Loan, the yield rate set
forth in the related Mortgage Loan documents and applied to determine the
amount of any Yield Maintenance Charge with respect to such Mortgage Loan.
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, for purposes of determining amounts
with respect to the Certificates and the rights and obligations of the parties
hereto, the following provisions shall apply:
(i) All calculations of interest (other than as provided in
the Mortgage Loan documents) provided for herein shall be made on the
basis of a 360-day year consisting of twelve 30-day months.
(ii) All Servicing Fees and Special Servicing Fees shall be
calculated on the basis of a 360-day year consisting of twelve 30-day
months.
(iii) Any Mortgage Loan payment is deemed to be received on
the date such payment is actually received by the Servicer, the
Special Servicer or the Trustee;
54
provided, however, that for purposes of calculating distributions on
the Certificates, Principal Prepayments with respect to any Mortgage
Loan are deemed to be received on the date they are applied in
accordance with the Servicing Standards consistent with the terms of
the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iv) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral
Support Deficit allocated to such Class on such Distribution Date
pursuant to Section 4.04 and (c) the addition of any Certificate
Deferred Interest allocated to such Class and added to such
Certificate Balance pursuant to Section 4.06(b).
[End of Article I]
55
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, transfer and convey to the Trustee, without
recourse, in trust for the benefit of the Certificateholders all the right,
title and interest of the Depositor, including any security interest therein
for the benefit of the Depositor, in, to and under (i) the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) Sections 2, 3.2, 3.3, 3.6, 5.3
and 5.4 of the Mortgage Loan Purchase and Sale Agreement and (iii) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal received or receivable on or with respect to the
Mortgage Loans (other than payments of principal and interest due and payable
on the Mortgage Loans on or before the Cut-off Date). The transfer of the
Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 11.07, is intended by the parties to
constitute a sale. In connection with the assignment to the Trustee of Sections
2, 3.2, 3.3, 3.6, 5.3 and 5.4 of the Mortgage Loan Purchase and Sale Agreement,
it is intended that the Trustee get the benefit of Section 5 thereof in
connection with any exercise of rights thereunder, and the Depositor shall use
its best efforts to make available to the Trustee the benefits of Section 5
thereof in connection with such exercise of rights.
In connection with the transfer and assignment of the Lomas
Santa Fe Mortgage Loan to the Trustee, the Depositor does hereby deliver to the
Trustee, with a copy to the Servicer and the Special Servicer, a copy of the
Pari Passu Intercreditor Agreement, and assigns to the Trustee its rights as
holder of the Lomas Santa Fe Mortgage Loan under the Pari Passu Intercreditor
Agreement.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase and Sale Agreement to 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, the Mortgage File for each
Mortgage Loan so assigned. If the Mortgage Loan Seller cannot deliver, or cause
to be delivered, as to any Mortgage Loan, any original Mortgage Note, the
Mortgage Loan Seller shall deliver a copy or duplicate original of such
Mortgage Note, together with an affidavit certifying that the original thereof
has been lost or destroyed. If the Mortgage Loan Seller cannot deliver, or
cause to be delivered, as to any Mortgage Loan, any of the documents or
instruments referred to in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of
the definition of "Mortgage File," with evidence of recording thereon, solely
because of a delay caused by the public recording office where such document or
instrument has been delivered for recordation, the delivery requirements of the
Mortgage Loan Purchase and Sale Agreement and this Section 2.01(b) shall be
deemed to have been satisfied as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided
56
that a photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate county recorder's office, in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File," to
be a true and complete copy of the original thereof submitted for recording),
with evidence of recording thereon, is delivered to the Trustee or such
Custodian within 120 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 is, as certified
in writing to the Trustee no less often than every 90 days, in good faith
attempting to obtain from the appropriate county recorder's office such
original or photocopy). If the Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of recording thereon, if
applicable, for any other reason, including, without limitation, that such
non-delivered document or instrument has been lost, the delivery requirements
of the Mortgage Loan Purchase and Sale Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (with evidence of recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by the Mortgage Loan Seller or the Depositor to
comply with the delivery requirements of the Mortgage Loan Purchase and Sale
Agreement and this Section 2.01(b). With respect to any Mortgage Loan and
notwithstanding the foregoing or the definition of "Mortgage File," the
Mortgage Loan Seller may deliver a UCC-3 on or before the Closing Date that
does not contain the filing information for the related UCC-1 and/or UCC-2 if
such UCC-1 and/or UCC-2 has not been returned to the Mortgage Loan Seller by
the applicable filing office, and the Mortgage Loan Seller may deliver an
assignment referred to in clauses (iii), (v) or (vii) of the definition of
"Mortgage File" that does not contain the recording information for the related
Mortgage, Assignment of Leases or Security Agreement, as applicable, if such
Mortgage, Assignment of Leases or Security Agreement has not been returned to
the Mortgage Loan Seller by the applicable recording office. The Trustee shall
obtain such filing or recording information from the Mortgage Loan Seller for
such Mortgage Loans and cause such filing or recording information to be
inserted into the applicable document.
(c) Except under the circumstances provided for in the last sentence
of this subsection (c), the Mortgage Loan Seller shall as to each Mortgage
Loan, promptly (and in any event within 30 days of the later of the Closing
Date and the Trustee's actual receipt of the related documents) cause to be, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate, each assignment to the Trustee
referred to in clauses (iii), (v) and (vii) of the definition of "Mortgage
File" and each UCC-3 to the
57
Trustee referred to in clause (xi) of the definition of "Mortgage File." Each
such assignment shall reflect that it should be returned by the public
recording office to the Trustee or its designee following recording, and each
such UCC-3 shall reflect that the file copy thereof should be returned to the
Trustee or its designee following filing. Subject to Section 2.01(b), 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 shall
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause
the same to be duly recorded or filed, as appropriate. The Depositor shall
execute, or cause the Mortgage Loan Seller to execute, any replacement document
or instrument being filed in substitution for any such lost or returned
unrecorded or unfiled document or instrument and assist the Trustee or a
Custodian or its agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii), (v) or (vii) of the
definition of "Mortgage File," or to file any UCC-3 to the Trustee referred to
in clause (xi) of the definition of "Mortgage File," in those jurisdictions
where, in the written opinion of local counsel (which opinion shall not be an
expense of the Trust Fund) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the Mortgage Loan Seller, the Servicer, the Special Servicer, any
Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the Mortgage Loan
Seller's possession relating to the Mortgage Loans (including financial
statements, operating statements and any other information provided by the
respective Mortgagor from time to time) that are not required to be a part of a
Mortgage File in accordance with the definition thereof shall be delivered to
the Servicer on or before the Closing Date (subject to Section 2.01(b) and
shall be held by the Servicer on behalf of the Trustee in trust for the benefit
of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of the Mortgage Loan
Purchase and Sale Agreement, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that, promptly
after the Closing Date, but in all events within three Business Days after the
Closing Date, the Mortgage Loan Seller shall cause all funds on deposit in
escrow accounts maintained with respect to the Mortgage Loans in the name of
the Mortgage Loan Seller or any other name to be transferred to the Servicer
(or a Sub-Servicer) for deposit into Servicing Accounts.
SECTION 2.02. Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf (but subject to (i) the
provisions of Section 2.01, (ii) the further review provided for in this
Section 2.02 and (iii) any exceptions noted on the Trustee Exception Report) of
the applicable documents specified in the definition of "Mortgage File"
58
with respect to each Mortgage Loan (including without limitation each related
Mortgage Note), of a fully executed original counterpart of the Mortgage Loan
Purchase and Sale Agreement and of all other assets included in the Trust Fund,
in good faith and without notice of any adverse claim, and declares that it or
a Custodian on its behalf holds and will hold such documents and the other
documents delivered or caused to be delivered by the Mortgage Loan Seller
constituting the Mortgage Files, and that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit
of all present and future Certificateholders.
(b) Within 60 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Mortgage Loan documents delivered or caused
to be delivered by the Mortgage Loan Seller constituting the Mortgage Files;
and, promptly following such review (but in no event later than 90 days after
the Closing Date), the Trustee shall certify in writing to each of the Rating
Agencies, the Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder (provided it shall have identified itself, and furnished to
the Trustee a notice address for the delivery of such certification) and the
Mortgage Loan Seller that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in the definition
of "Mortgage File," as applicable, are in its possession, (ii) all documents
delivered or caused to be delivered by the Mortgage Loan Seller constituting
the Mortgage Files have been reviewed by it or by a Custodian on its behalf and
appear regular on their face and 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 (i), (ii), (iii), (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
Mortgage Loan documents received thereby subsequent to the Closing Date; and,
on or about the first anniversary of the Closing Date, the Trustee shall
certify in writing to each of the Rating Agencies, the Depositor, the Servicer,
the Special Servicer and the Mortgage Loan Seller that, as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan as to
which a Liquidation Event has occurred or any Mortgage Loan specifically
identified in any exception report annexed thereto as not being covered by such
certification), (i) all documents specified in the definition of "Mortgage
File," as applicable, are in its possession, (ii) all Mortgage Loan documents
received by it or any Custodian have been reviewed by it or by such Custodian
on its behalf and appear regular on their face and relate to such Mortgage Loan
and (iii) based on the examinations referred to in subsection (b) above and
this subsection (c) and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (i), (ii), (iii), (iv), (vi) and (viii)(c) of the definition of
"Mortgage Loan Schedule" is correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (iv) - (viii), (x) and (xiv) of the definition
of "Mortgage File" exist or are required to be delivered by the Depositor, the
Mortgage Loan Seller or any other Person or (ii) to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans
59
delivered to it to determine that the same are genuine, enforceable or
appropriate for the represented purpose or that they are other than what they
purport to be on their face.
(e) If, in the process of reviewing the Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of the Mortgage File not to have been properly executed or,
subject to Section 2.01(b), not to have been delivered, to contain information
that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule or to be defective on its
face (each, a "Defect" in the related Mortgage File), the Trustee shall
promptly so notify the Depositor, the Servicer, the Special Servicer and the
Mortgage Loan Seller (and in no event later than 90 days after the Closing Date
and every 90 days thereafter until January 1, 2000, and annually thereafter),
by providing a written report ( the "Trustee Exception Report") setting forth
with particularity for each affected Mortgage Loan the nature of such Defect.
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Seller's Repurchase of Mortgage Loans for Defects in
Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and the Depositor has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement by
it, and has the power and authority to execute, deliver and perform
this Agreement and all the transactions contemplated hereby,
including, but not limited to, the power and authority to sell, assign
and transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery
of this Agreement by each other party hereto, this Agreement and all
of the obligations of the Depositor hereunder are the legal, valid and
binding obligations of the Depositor, enforceable against the
Depositor in accordance with the terms of this Agreement, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulation to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of the certificate of incorporation or the by-laws of the Depositor or
any indenture, agreement or instrument to which the Depositor is a
party or by which it is bound, or any order or decree applicable to
the Depositor, or result in the creation or imposition of any lien on
any of the Depositor's assets or property, which would materially and
adversely affect the ability
60
of the Depositor to carry out the transactions contemplated by this
Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor
of this Agreement;
(iv) There is no action, suit or proceeding pending or, to
the Depositor's knowledge, threatened against the Depositor in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of the
Mortgage Loans or the ability of the Depositor to carry out the
transactions contemplated by this Agreement;
(v) 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
except for any such approvals that have been received and copies of
which have been provided to the Trustee and the Underwriter;
(vi) The Depositor is the lawful owner of the Mortgage Loans
with the full right and authority to sell, assign and transfer the
Mortgage Loans to the Trust; and
(vii) The Depositor is transferring the Mortgage Loans to the
Trustee for the benefit of the Certificateholders free and clear of
any and all liens, pledges, charges and security interests.
The representations and warranties of the Depositor set forth in this
Section 2.03(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 party hereto
of any breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice thereof to the other
parties hereto (it being understood that any such breach shall not be a
Breach).
(b) If any Certificateholder, the Servicer, the Special Servicer or
the Trustee discovers or receives notice of a Defect in any Mortgage File or a
breach of any representation or warranty set forth in, or required to be made
with respect to a Mortgage Loan by the Mortgage Loan Seller pursuant to, the
Mortgage Loan Purchase and Sale Agreement (a "Breach"), which Defect or Breach,
as the case may be, materially and adversely affects the value of any Mortgage
Loan or the interests of the Certificateholders therein, such
Certificateholder, the Servicer, the Special Servicer or the Trustee, as
applicable, shall give prompt written notice of such Defect or Breach, as the
case may be, to the Depositor, the Servicer, the Special Servicer, each Rating
Agency, the Mortgage Loan Seller and shall request that the Mortgage Loan
Seller, not later than the earlier of 90 days from the Mortgage Loan Seller's
receipt of such notice or the Mortgage Loan Seller's discovery of such Breach,
cure such Defect or Breach, as the case may be, in all material respects or
repurchase the affected Mortgage Loan at the applicable Purchase Price or in
conformity with the Mortgage Loan Purchase and Sale Agreement. Any Defect or
Breach which causes any Mortgage Loan not to be a "qualified mortgage" (within
the
61
meaning of Section 860G(a)(3) of the Code) shall be deemed to materially and
adversely affect the interest of Certificateholders therein. If a Defect or
Breach has not been cured (or the related Mortgage Loan has not been
repurchased) within the 90 day period specified above, the Servicer, the
Special Servicer or the Trustee, as applicable, shall notify the Directing
Certificateholder as to such Defect or Breach promptly following the expiration
of such period.
If the affected Mortgage Loan is to be repurchased, the Trustee shall designate
the Certificate Account as the account into which funds in the amount of the
Purchase Price are to be deposited by wire transfer.
(c) In connection with any repurchase of a Mortgage Loan contemplated
by this Section 2.03, the Trustee, the Servicer and the Special Servicer shall
each tender to the Mortgage Loan Seller, upon delivery to each of the Trustee,
the Servicer and the Special Servicer of a trust receipt executed by the
Mortgage Loan Seller, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the Mortgage Loan
Seller in the same manner as provided in Section 3.3 of the Mortgage Loan
Purchase and Sale Agreement.
(d) Section 3.3 of the Mortgage Loan Purchase and Sale Agreement
provides the sole remedy available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Defect in a Mortgage File or
any Breach of any representation or warranty set forth in or required to be
made pursuant to Section 3.2 of such Mortgage Loan Purchase and Sale Agreement.
(e) The Trustee and the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall, for the benefit of the Certificateholders,
enforce the obligations of the Mortgage Loan Seller under Section 3.3 of the
Mortgage Loan Purchase and Sale Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, shall be carried out in such form,
to such extent and at such time as the Trustee or the Special Servicer, as the
case may be, would require were it, in its individual capacity, the owner of
the affected Mortgage Loan(s). The Trustee and the Special Servicer, as the
case may be, shall be reimbursed for the reasonable costs of such enforcement:
first, from a specific recovery of costs, expenses or attorneys' fees against
the Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii), out of the
related Purchase Price, to the extent that such expenses are a specific
component thereof; and third, if at the conclusion of such enforcement action
it is determined that the amounts described in clauses first and second are
insufficient, then pursuant to Section 3.05(a)(viii), out of general
collections on the Mortgage Loans on deposit in the Certificate Account.
SECTION 2.04. Execution of Certificates.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans and, subject to Sections 2.01 and 2.02, the delivery to it or a Custodian
on its behalf of the Mortgage Files and a fully executed original counterpart
of the Mortgage Loan Purchase and Sale Agreement, together with the assignment
to it of all other assets included in the Trust Fund.
62
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee acknowledges the issuance of the Uncertificated Lower-Tier Interests to
the Depositor and the authentication and delivery of the Class LR Certificates
to or upon the order of the Depositor, in exchange for the Mortgage Loans,
receipt of which is hereby acknowledged, and immediately thereafter, the
Trustee acknowledges that it has executed and caused the Authenticating Agent
to authenticate and to deliver to or upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular Certificates
and the Class R Certificates, and the Depositor hereby acknowledges the receipt
by it or its designees, of such Certificates in authorized Denominations
evidencing the entire beneficial ownership of the Upper-Tier REMIC.
[End of Article II]
63
ARTICLE III.
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to
Act as Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Mortgage Loans which it is obligated to service
pursuant to this Agreement on behalf of the Trustee and in the best interests
of and for the benefit of the Certificateholders (as determined by the Servicer
or the Special Servicer, as the case may be, in its good faith and reasonable
judgment) in accordance with applicable law, the terms of this Agreement and
the terms of the respective Mortgage Loans and, to the extent consistent with
the foregoing, in accordance with the higher of the following standards of
care: (1) the same manner in which, and with the same care, skill, prudence and
diligence with which the Servicer or Special Servicer, as the case may be,
services and administers similar mortgage loans for other third-party
portfolios, giving due consideration to the customary and usual standards of
practice of prudent institutional multifamily and commercial mortgage lenders
servicing their own mortgage loans and (2) the same care, skill, prudence and
diligence with which the Servicer or Special Servicer, as the case may be,
services and administers commercial, multifamily and mobile home community
mortgage loans owned by the Servicer or Special Servicer, as the case may be,
if applicable, in either case exercising reasonable business judgment and
acting in accordance with applicable law, the terms of this Agreement, the
respective Mortgage Loans or Specially Serviced Mortgage Loans, as applicable,
and with a view to the maximization of timely recovery of principal of and
interest on a present value basis on the Mortgage Loans or Specially Serviced
Mortgage Loans, as applicable, and the best interests of the Trust and the
Certificateholders, as determined by the Servicer or Special Servicer, as the
case may be, in its reasonable judgment, but without regard to: (i) any
relationship that the Servicer or the Special Servicer, as the case may be, or
any Affiliate thereof may have with the related Mortgagor or any other party to
this Agreement; (ii) the ownership of any Certificate by the Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (iii) the
Servicer's obligation to make Advances; and (iv) the Servicer's or Special
Servicer's, as the case may be, right to receive compensation for its services
hereunder or with respect to any particular transaction (the foregoing,
collectively referred to as the "Servicing Standards"). Without limiting the
foregoing, subject to Section 3.21, the Special Servicer shall be obligated to
service and administer (i) any Mortgage Loans as to which a Servicing Transfer
Event has occurred and is continuing (the "Specially Serviced Mortgage Loans")
and (ii) any REO Properties; provided, however, that the Servicer shall
continue to make all calculations, and prepare, or cause to be prepared, all
reports to the Certificateholders required hereunder with respect to the
Specially Serviced Mortgage Loans as if no Servicing Transfer Event had
occurred and with respect to the REO Properties (and the related REO Loans) as
if no REO Acquisition had occurred, and to render such incidental services with
respect to such Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein; provided, further, however, that the Servicer
shall not be liable for failure to comply with such duties insofar as such
failure results from a failure of
64
the Special Servicer to provide sufficient information to the Servicer to
comply with such duties. Each Mortgage Loan that becomes a Specially Serviced
Mortgage Loan shall continue as such until satisfaction of the conditions
specified in Section 3.21(a). Without limiting the foregoing, subject to
Section 3.21, the Servicer shall be obligated to service and administer all
Mortgage Loans which are not Specially Serviced Mortgage Loans; provided,
however, that the Special Servicer shall make the inspections, use its
reasonable best efforts to collect the statements and shall prepare the reports
in respect of the related Mortgaged Properties with respect to Specially
Serviced Mortgage Loans in accordance with Section 3.12.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans, the Servicer and the Special
Servicer each shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Servicer and the Special Servicer, in
its own name, is hereby authorized and empowered by the Trustee and obligated
to execute and deliver, on behalf of the Certificateholders and the Trustee or
any of them, with respect to each Mortgage Loan it is obligated to service
under this Agreement, any and all financing statements, continuation statements
and other documents or instruments necessary to maintain the lien created by
the related Mortgage or other security document in the related Mortgage File on
the related Mortgaged Property and related collateral; subject to Section 3.20,
any and all modifications, waivers, amendments or consents to or with respect
to any documents contained in the related Mortgage File; and any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall furnish, or cause to be furnished, to the Servicer or the Special
Servicer any powers of attorney and other documents necessary or appropriate to
enable the Servicer or the Special Servicer, as the case may be, to carry out
its servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Servicer or the Special Servicer.
(c) The relationship of the Servicer to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor
and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and
shall follow such collection procedures as are consistent with this Agreement
(including, without limitation, the Servicing Standards). Notwithstanding
anything to the contrary contained in this Agreement, the Servicer or Special
Servicer, as the case may be, may take action to enforce the Trust Fund's right
to apply excess cash flow to principal in accordance with the terms of the Loan
Documents. Consistent with the foregoing, the Servicer or the Special Servicer
each may in its discretion waive any Penalty Charge in connection with any
delinquent payment on a Mortgage Loan it is obligated to service hereunder.
65
(b) All amounts collected on any Mortgage Loan in the form of payments
from Mortgagors, Insurance and Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note or
Mortgage Notes and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of each
related Mortgage Note and the related Mortgage and, in the absence of such
express provisions, shall be applied (after reimbursement to the Servicer, the
Trustee and/or the Fiscal Agent for any related Servicing Advances and interest
thereon as provided herein): first, as a recovery of accrued and unpaid
interest on such Mortgage Loan at the related Mortgage Rate in effect from time
to time to but not including the Due Date in the Due Period of receipt; second,
as a recovery of principal of such Mortgage Loan to the extent of its entire
unpaid principal balance and third, in accordance with the Servicing Standards,
as a recovery of any other amounts due and owing on such Mortgage Loan,
including, without limitation, Yield Maintenance Charges, Penalty Charges and
Excess Interest. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans and
applicable law, the Servicer shall apply all Insurance and Condemnation
Proceeds it receives on a day other than the first day of a month to amounts
due and owing under the related Mortgage Loan as if such Insurance and
Condemnation Proceeds were received on the first day of the calendar month
immediately succeeding the month in which such Insurance and Condemnation
Proceeds were received.
(d) Notwithstanding anything herein to the contrary, the Servicer and
the Special Servicer, as applicable, shall service the Pari Passu Loan in
accordance with this Agreement as if it were a Mortgage Loan, and in connection
therewith, the Servicer and the Special Servicer, as applicable, shall without
limitation (i) receive all payments made with respect to the Pari Passu Loan
and deposit such payments into the Certificate Account in accordance with
Section 3.04 of this Agreement or the REO Account in accordance with Section
3.06 of this Agreement, (ii) subject to the first two provisos to this
subsection (d), withdraw from the Certificate Account (no later than 10 days
after the date of deposit therein pursuant to clause (i) above) and pay to the
holder of the Pari Passu Loan, in accordance with the Pari Passu Loan and the
Pari Passu Intercreditor Agreement, such amounts as are deposited therein
pursuant to clause (i) above, (iii) determine, on behalf of the Trustee as
holder of the Lomas Santa Fe Mortgage Loan, whether the conditions relating to
a mandatory prepayment of the Pari Passu Loan have been satisfied, (iv)
exercise, on behalf of the holder of the Pari Passu Loan, all remedial rights
with respect to the Pari Passu Loan in accordance with the Pari Passu
Intercreditor Agreement, the Pari Passu Mortgage and all other documentation
with respect to the Pari Passu Loan (including drawing on the Pari Passu LC in
accordance with its terms) and otherwise in substantially the same way that it
would exercise such rights with respect to the Lomas Santa Fe Mortgage Loan
pursuant to the terms of this Agreement, (v) subject to the proviso to this
subsection (d), make P&I Advances with respect to the Pari Passu Loan in the
same manner and on the same terms as are provided for in Section 4.03 of this
Agreement with respect to the Mortgage Loans, (vi) deliver reports and other
information with respect to the Pari Passu Loan that is substantially similar
to the information and reports that are required to be delivered with respect
to the Mortgage Loans pursuant to Section 4.02 of this Agreement and (vii) take
such other actions with respect thereto
66
as shall be required in accordance with the Servicing Standards, this
Agreement, the Pari Passu Intercreditor Agreement and the Pari Passu Mortgage;
provided, however, that any withdrawals from the Certificate Account pursuant
to clause (ii) above shall be net of any amounts that are payable to the
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in respect of
the Pari Passu Loan pursuant to this Agreement (including without limitation
any Servicing Fees, Special Servicing Fees or other compensation payable to the
Servicer or the Special Servicer in respect of the Pari Passu Loan and
reimbursement of any P&I Advances made with respect to the Pari Passu Loan
pursuant to clause (v) above) and other amounts payable in respect of the Pari
Passu Loan; provided further that any withdrawals pursuant to clause (ii) above
shall be made only from amounts received with respect to the Pari Passu Loan,
and no amounts received with respect to any Mortgage Loans (including the Lomas
Santa Fe Mortgage Loan) shall under any circumstance be paid to the holder of
the Pari Passu Loan; provided further, that the Servicer and Special Servicer
shall be entitled to (i) reimbursement of Advances made with respect to the
Pari Passu Loan, (ii) reimbursement of other expenses (including without
limitation indemnity payments) with respect to the Pari Passu Loan and (iii)
the Servicing Fee and the Special Servicing Fee, as applicable, and any other
compensation payable to the Servicer and Special Servicer with respect to the
Pari Passu Loan, in each case only from amounts received with respect to the
Pari Passu Loan.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained, and shall administer such Servicing Accounts in accordance with
the Mortgage Loan documents. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so deposited from a Servicing Account may be made only
to: (i) effect payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable), repair, remediation, capital improvements, and
comparable items; (ii) reimburse the Servicer, the Trustee or the Fiscal Agent
for any Servicing Advances; (iii) refund to Mortgagors any sums as may be
determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Mortgage Loan and as described below or, if not so required, to the Servicer;
(v) withdraw amounts deposited in error or (vi) clear and terminate the
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. As part of its servicing duties, the Servicer shall pay or cause
to be paid to the Mortgagors interest on funds in Servicing Accounts, to the
extent required by law or the terms of the related Mortgage Loan.
(b) The Special Servicer, in the case of REO Loans, and the Servicer,
in the case of all other Mortgage Loans, shall maintain accurate records with
respect to each related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien
thereon and the status of insurance premiums and any ground rents payable in
respect thereof. The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall obtain, from time to
time, all bills for the payment of such items (including renewal premiums) and
shall effect payment thereof by the Servicer as Servicing Advances if such
amounts would not constitute Nonrecoverable Advances and
67
otherwise from the REO Account prior to the applicable penalty or termination
date, employing for such purpose Escrow Payments (which shall be so applied by
the Servicer at the written direction of the Special Servicer in the case of
REO Loans and Specially Serviced Mortgage Loans) as allowed under the terms of
the related Mortgage Loan. The Servicer shall service and administer any
reserve accounts (including monitoring, maintaining or changing the amounts of
required escrows) in accordance with the terms of such Mortgage Loan and the
Servicing Standards; provided, however, that in the case of a Specially
Serviced Mortgage Loan, the Servicer shall obtain the written direction from
the Special Servicer prior to changing the amount of escrow required or making
any payments out of the related reserve account. To the extent that a Mortgage
Loan does not require a Mortgagor to escrow for the payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, the Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall require that payments
in respect of such items be made by the Mortgagor at the time they first become
due.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans, the Servicer shall advance with respect to each related Mortgaged
Property (including any REO Property) all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and
other similar items that are or may become a lien thereon, (ii) ground rents
(if applicable) and (iii) premiums on Insurance Policies, in each instance if
and to the extent related Escrow Payments 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; provided, however, that the particular
Servicing Advance would not, if made, constitute a Nonrecoverable Servicing
Advance; provided, further, that with respect to the payment of taxes and
assessments, the Servicer shall not be required to make such Servicing Advance
until the earlier of five Business Days after the Servicer has received
confirmation that such item has not been paid or the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments. The Special Servicer shall give the Servicer, the Trustee and the
Fiscal Agent not less than five Business Days' written (facsimile) notice
before the date on which the Servicer is requested to make any Servicing
Advance with respect to a given Specially Serviced Mortgage Loan or REO
Property; provided, however, that only two Business Days' written (facsimile)
notice shall be required in respect of Servicing Advances required to be made
on an urgent or emergency basis (which may include, without limitation,
Servicing Advances required to make tax or insurance payments). In addition, at
the time of such notice, the Special Servicer shall provide the Servicer, the
Trustee and the Fiscal Agent with such information in its possession as the
Servicer, the Trustee or the Fiscal Agent, as applicable, may reasonably
request to enable the Servicer, the Trustee or the Fiscal Agent, as applicable,
to determine whether a requested Servicing Advance would constitute a
Nonrecoverable Advance. All such advances shall be reimbursable as provided in
Section 3.05. No costs incurred by the Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit. The failure by the Servicer to make any required Servicing Advance as
and when due (unless such a Servicing Advance would constitute a Nonrecoverable
68
Servicing Advance) shall constitute an Event of Default under Section
7.01(a)(i) and, to the extent the Trustee has actual knowledge that such
Servicing Advance is necessary, the Trustee shall make such Servicing Advance
pursuant to Section 7.05. If the Trustee fails to make such Servicing Advance,
to the extent the Fiscal Agent has knowledge that such Servicing Advance is
necessary, the Fiscal Agent shall make such Servicing Advance pursuant to
Section 7.05.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), each of the Servicer, the
Trustee and the Fiscal Agent, as the case may be, shall be entitled to receive,
out of any amounts then on deposit in the Certificate Account, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
Servicing Advance from the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself, the Trustee or the Fiscal
Agent, as the case may be, for any outstanding Servicing Advance and any
accrued interest thereon as soon as practically possible after funds available
for such purpose are deposited in the Certificate Account.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the Servicer
shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any
repairs, capital improvements, actions or remediations are required to have
been taken or completed pursuant to the terms of the Mortgage Loan, the
Servicer shall request from the Mortgagor written confirmation of such actions
and remediations within a reasonable time after the later of the Closing Date
and the date as of which such actions or remediations are required to be or to
have been taken or completed. To the extent a Mortgagor shall fail to promptly
respond to any inquiry described in this Section 3.03(e), the Servicer shall
determine whether the related Mortgagor has failed to perform its obligations
under the related Mortgage Loan and report any such failure to the Special
Servicer within a reasonable time after the later of January 1, 1999 and the
date as of which such actions or remediations are required to be or to have
been taken or completed.
SECTION 3.04. The Certificate Account and the Lower-Tier and
Upper-Tier Distribution Accounts.
(a) The Servicer, on behalf of the Trustee, in trust for the benefit
of the Certificateholders, shall establish and maintain, or cause to be
established and maintained, a Certificate Account into which the Servicer shall
deposit or cause to be deposited on a daily basis (and in no event later than
the Business Day following receipt of available funds), except as otherwise
specifically provided herein, the following payments and collections received
or made by or on behalf of it subsequent to the Cut-off Date (other than in
respect of principal and interest on the Mortgage Loans due and payable on or
before the Cut-off Date), or payments (other than Principal Prepayments)
received by it on or prior to the Cut-off Date but allocable to a period
subsequent thereto:
69
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage
Loans (net of the Servicing Fees), including Excess Interest, Penalty
Charges and Yield Maintenance Charges;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Mortgage Loan or REO Property
(other than Liquidation Proceeds that are received in connection with
the purchase by the Servicer, the Special Servicer, the Controlling
Class Certificateholders, or the Holders of the Class LR Certificates
of all the Mortgage Loans and any REO Properties in the Trust Fund and
that are to be deposited in the Lower-Tier Distribution Account
pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Servicer
pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Certificate
Account; and
(vi) any amounts required to be deposited by the Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket hazard or
master single interest policy.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption
fees, modification fees, extension fees or amounts collected for mortgagor
checks returned for insufficient funds need not be deposited by the Servicer in
the Certificate Account. If the Servicer shall deposit in the Certificate
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Certificate Account, any provision herein to the
contrary notwithstanding. Assumption, extension and modification fees actually
received from Mortgagors on Mortgage Loans or Specially Serviced Mortgage Loans
shall be promptly delivered to the Special Servicer as additional servicing
compensation, but only to the extent the payment of such fees are in accordance
with the second paragraph of Section 3.11(b) and any other terms hereof.
Funds in the Certificate Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Servicer
shall give notice to the Trustee, the Special Servicer and the Depositor of the
location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any change thereof.
70
(b) Upon receipt of any of the amounts enumerated in Section 3.05(a)
with respect to any Specially Serviced Mortgage Loan, the Special Servicer
shall remit within one Business Day such amounts to the Servicer for deposit
into the Certificate Account in accordance with the Section 3.05(a). 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
Servicer for deposit into the Certificate Account pursuant to Section 3.16(c).
Any items remitted to the Servicer pursuant to this paragraph shall be
accompanied by a copy of the invoice or other posting instructions, if any,
received from the related Mortgagor. With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
without recourse or warranty such check to the order of the Servicer and shall
promptly deliver any such check to the Servicer by Federal Express or such
other overnight courier as shall be approved by the Servicer. Upon proper
endorsement and addressing of package containing such items and delivery to
Federal Express or such other nationally recognized overnight courier service,
Special Servicer shall be deemed to have acted in good faith pursuant to
Section 6.03(a).
(c) The Trustee shall establish and maintain the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account and the Interest
Reserve Account in trust for the benefit of the Certificateholders.
Notwithstanding anything herein to the contrary, the Lower-Tier Distribution
Account and the Upper-Tier Distribution Account may be established as
sub-accounts of a single trust account, which shall be an Eligible Account. To
the extent the Trustee is required to make distributions from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account in respect of the
Uncertificated Lower-Tier Interests or otherwise, such distributions may be
effected through accounting entries on the books of the Trustee.
The Servicer shall, by 2:00 p.m. Dallas time on each Servicer
Remittance Date, deliver to the Trustee for deposit in the Lower-Tier
Distribution Account the following amounts (without duplication):
(i) all amounts constituting the Available Distribution
Amount for the immediately following Distribution Date;
(ii) any amounts required to be deposited by the Servicer
pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Lower-Tier
Distribution Account;
(iii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iv) any Liquidation Proceeds paid by the Controlling Class
Certificateholders, the Servicer, the Special Servicer, or the Holders
of the Class LR Certificates in connection with the purchase of all of
the Mortgage Loans and any REO Properties in the Trust Fund pursuant
to Section 3.18(b) or Section 9.01 (exclusive of that portion thereof
required to be deposited in the Certificate Account pursuant to
Section 9.01);
(v) any Yield Maintenance Charges; and
71
(vi) any other amounts required to be so delivered for
deposit in the Lower-Tier Distribution Account pursuant to any
provision of this Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Trustee that are
required by the terms of this Agreement to be deposited therein. The Trustee
shall deposit in the Lower-Tier Distribution Account any P&I Advances required
to be made by it or the Fiscal Agent in accordance with Section 7.05.
Immediately after the deposit of all funds in the Lower-Tier
Distribution Account and prior to the close of business on such Servicer
Remittance Date, the Trustee shall deposit in the Upper-Tier Distribution
Account an aggregate amount of immediately available funds equal to the
Lower-Tier Distribution Amount and the amount of any Yield Maintenance Charges
for such Distribution Date allocated in payment of the Uncertificated
Lower-Tier Interests as specified in Sections 4.01(b) and 4.01(d),
respectively.
Pursuant to Section 3.06, the Servicer shall deliver to the Trustee
for deposit in the Upper-Tier Distribution Account any amounts required to be
deposited therein in connection with losses incurred with respect to Permitted
Investments of funds held in the Upper-Tier Distribution Account.
Funds on deposit in the Upper-Tier Distribution Account, the
Lower-Tier Distribution Account and/or the Certificate Account may be invested
in Permitted Investments in accordance with the provisions of Section 3.06. As
of the Closing Date, the Certificate Account shall be located at the offices of
the Servicer. The Servicer shall give notice to the Trustee, the Special
Servicer, each Rating Agency and the Depositor of the location of the
Certificate Account and of any new location of the Certificate Account prior to
any change thereof. The Trustee shall give notice to the Servicer and the
Depositor of the location of the Upper-Tier Distribution Account and the
Lower-Tier Distribution Account and of the new location of the Distribution
Accounts prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Certificate Account and
the Distribution Accounts.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes:
(i) to deposit in the Lower-Tier Distribution Account the
amounts that may be applied to make P&I Advances pursuant to Section
4.03(a);
(ii) to pay to itself unpaid Servicing Fees and to pay to the
Special Servicer unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in respect of each Mortgage Loan, Specially Serviced
Mortgage Loan and REO Loan, as applicable, the Servicer's or Special
Servicer's, as applicable, rights to payment pursuant to this clause
(ii) with respect to any Mortgage Loan, Specially Serviced Mortgage
Loan or REO Loan, as applicable, being limited to amounts received on
or in respect of such Mortgage Loan
72
(whether in the form of payments, Liquidation Proceeds or Insurance
and Condemnation Proceeds) or such REO Loan (whether in the form of
REO Revenues, Liquidation Proceeds or Insurance and Condemnation
Proceeds) that are allocable as a recovery of interest thereon;
(iii) to reimburse itself, the Trustee or the Fiscal Agent,
as applicable (in reverse of such order with respect to any Mortgage
Loan), for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, the Servicer's, the Trustee's or
the Fiscal Agent's right to reimbursement pursuant to this clause
(iii) being limited to amounts received which represent Late
Collections of interest (net of the related Servicing Fees) on and
principal of the particular Mortgage Loans and REO Loans with respect
to which such P&I Advances were made;
(iv) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable (in reverse of such order with respect to any Mortgage
Loan), for unreimbursed Servicing Advances, the Servicer's, the
Trustee's or the Fiscal Agent's respective rights to reimbursement
pursuant to this clause (iv) with respect to any Mortgage Loan or REO
Property being limited to, as applicable, related payments,
Liquidation Proceeds, Insurance and Condemnation Proceeds and REO
Revenues;
(v) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable (in reverse of such order with respect to any Mortgage
Loan), for Nonrecoverable Advances out of general collections on the
Mortgage Loans and REO Properties;
(vi) at such time as it reimburses itself, the Trustee or the
Fiscal Agent, as applicable (in reverse of such order with respect to
any Mortgage Loan), for (a) any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance pursuant to
clause (iii) above, to pay itself, the Trustee or the Fiscal Agent, as
applicable, any interest accrued and payable thereon in accordance
with Section 4.03(d) and 3.11(c), (b) any unreimbursed Servicing
Advances pursuant to clause (iv) above, to pay itself, the Trustee or
the Fiscal Agent, as the case may be, any interest accrued and payable
thereon in accordance with Section 3.03(d) or (c) any Nonrecoverable
Advances pursuant to clause (v) above, to pay itself, the Trustee or
the Fiscal Agent, as the case may be, any interest accrued and payable
thereon;
(vii) to reimburse itself, the Special Servicer, the
Depositor or the Trustee, as the case may be, for any unreimbursed
expenses reasonably incurred by such Person in respect of any Breach
or Defect giving rise to a repurchase obligation of the Mortgage Loan
Seller under Section 3.3 of the Mortgage Loan Purchase and Sale
Agreement, including, without limitation, any expenses arising out of
the enforcement of the repurchase obligation, each such Person's right
to reimbursement pursuant to this clause (vii) with respect to any
Mortgage Loan being limited to that portion of the Purchase Price paid
for such Mortgage Loan that represents such expense in accordance with
clause (iv) of the definition of Purchase Price;
73
(viii) in accordance with Section 2.03(d), to reimburse
itself or the Trustee, as the case may be, out of general collections
on the Mortgage Loans and REO Properties for any unreimbursed expense
reasonably incurred by such Person in connection with the enforcement
of the Mortgage Loan Seller's obligations under Section 3.3 of the
Mortgage Loan Purchase and Sale Agreement, but only to the extent that
such expenses are not reimbursable pursuant to clause (vii) above or
otherwise;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) out of general collections on the Mortgage
Loans and REO Properties;
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the Certificate
Account for any period from any Distribution Date to the immediately
succeeding Servicer Remittance Date) and (b) Penalty Charges on
Mortgage Loans (other than Specially Serviced Mortgage Loans), but
only to the extent collected from the related Mortgagor and to the
extent that all amounts then due and payable with respect to the
related Mortgage Loan have been paid and are not needed to pay
interest on Advances in accordance with Section 3.11(c); and to pay
the Special Servicer, as additional servicing compensation in
accordance with the second paragraph of Section 3.11(b), Penalty
Charges on Specially Serviced Mortgage Loans (but only to the extent
collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Specially
Serviced Mortgage Loan have been paid and are not needed to pay
interest on Advances in accordance with Section 3.11(c));
(xi) to recoup any amounts deposited in the Certificate
Account in error;
(xii) to pay itself, the Special Servicer, the Depositor or
any of their respective directors, managers, members, officers,
employees and agents, as the case may be, any amounts payable to any
such Person pursuant to Sections 6.03(a) or 6.03(b) or to the Trustee
pursuant to Section 8.05;
(xiii) to pay for (a) the cost of the Opinions of Counsel and
any costs not paid by the related Mortgagor contemplated by Sections
3.20(a) and 10.01(f) to the extent payable out of the Trust Fund, (b)
the cost of any Opinion of Counsel contemplated by Sections 11.01(a)
or 11.01(c) in connection with an amendment to this Agreement
requested by the Trustee or the Servicer, which amendment is in
furtherance of the rights and interests of Certificateholders and (c)
the cost of obtaining the REO Extension contemplated by Section
3.16(a);
(xiv) to pay out of general collections on the Mortgage Loans
and REO Properties any and all federal, state and local taxes imposed
on the Upper-Tier REMIC, the Lower-Tier REMIC or either of their
assets or transactions, together with all
74
incidental costs and expenses, to the extent that none of the
Servicer, the Special Servicer, the Trustee or the Fiscal Agent is
liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Servicer out of general collections on
the Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer, or the Mortgage
Loan Seller, 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 relating to periods after the date of purchase;
(xvii) to remit to the Trustee for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xviii)to remit to the holder of the Pari Passu Loan the
amounts that are required to be paid to it pursuant to the terms of
the Pari Passu Loan and the Pari Passu Intercreditor Agreement.
(xix) deposit in the Lower-Tier Distribution Account the
amount required to be deposited therein pursuant to Section 4.01(a);
and
(xx) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting records, on a
loan-by-loan and property-by-property basis when appropriate, for the purpose
of justifying any withdrawal from the Certificate Account.
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount
pursuant to Section 4.01(b) and the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d) in the Upper-Tier
Distribution Account and to make distributions on the Class LR
Certificates pursuant to section 4.01(b);
(ii) to pay the Servicer, as additional servicing
compensation in accordance with the second paragraph of Section
3.11(a), interest and investment income earned in respect of amounts
relating to the Trust Fund held in the Lower-Tier Distribution Account
as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the Lower-Tier Distribution
Account for any period from any Distribution Date to the immediately
succeeding Servicer Remittance Date);
75
(iii) [Intentionally Omitted.]
(iv) to pay to the Trustee, the Fiscal Agent or any of their
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);
(v) to clear and terminate the Lower-Tier Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the Upper-Tier Distribution
Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than
Holders of the Class LR Certificates) on each Distribution Date
pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Servicer, as additional servicing
compensation in accordance with the second paragraph of Section
3.11(a), interest and investment income earned in respect of amounts
held in the Upper-Tier Distribution Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with
respect to the Upper-Tier Distribution Account for any period from any
Distribution Date to the immediately succeeding Servicer Remittance
Date); and
(iii) to clear and terminate the Upper-Tier Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
(d) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, if amounts on deposit in the Certificate Account are not
sufficient to reimburse the full amount of Advances listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to
the Fiscal Agent, second, to the Trustee and third to the Servicer.
SECTION 3.06. Investment of Funds in the Certificate Account, the
Distribution Accounts and the REO Account.
(a) The Servicer may direct any depository institution maintaining the
Certificate Account, the Interest Reserve Account, the Upper-Tier Distribution
Account or the Lower-Tier Distribution Account (each, for purposes of this
Section 3.06, an "Investment Account") and the Special Servicer may direct any
depository institution maintaining the REO Account (also for purpose of this
Section 3.06, an "Investment Account") to invest, or if it is such depository
institution, may itself invest, the funds held therein 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. Any investment of funds in an
Investment Account shall be made in the name of the Trustee (in its capacity as
such). The Servicer (in the
76
case of the Certificate Account or the Interest Reserve Account) or the Special
Servicer (in the case of the REO Account), on behalf of the Trustee, shall
maintain continuous possession of any Permitted Investment of amounts in the
Certificate Account, the Interest Reserve Account or the REO Account that is
either (i) a "certificated security," as such term is defined in the UCC or
(ii) other property in which a secured party may perfect its security interest
by possession under the UCC or any other applicable law. Possession of any such
Permitted Investment by the Servicer or the Special Servicer shall constitute
possession by a person designated by the Trustee for purposes of Section 8-313
of the UCC and possession by the Trustee, as secured party, for purposes of
Section 9-305 of the UCC and any other applicable law. Except as otherwise
provided herein, the Trustee shall have sole control (except with respect to
investment direction) over Permitted Investments of amounts in the Distribution
Accounts. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Servicer (in the
case of the Certificate Account or the Interest Reserve Account), the Special
Servicer (in the case of the REO Account) or the Trustee (in the case of the
Distribution Accounts) shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (a) all amounts then payable thereunder and (b) the
amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly
upon determination by the Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in each
of the Certificate Account, the Interest Reserve Account and the Distribution
Accounts, to the extent of the Net Investment Earnings, if any, with respect to
such account for each period from any Distribution Date to the immediately
succeeding Servicer Remittance Date, shall be for the sole and exclusive
benefit of the Servicer and shall be subject to its withdrawal, or withdrawal
at its direction, in accordance with Section 3.05(a), 3.05(b) or 3.05(c), as
the case may be. Interest and investment income realized on funds deposited in
the REO Account, to the extent of the Net Investment Earnings, if any, with
respect to such account for each period from any Distribution Date to the
immediately succeeding Servicer Remittance Date, shall be for the sole and
exclusive benefit of the Trust Fund and shall be subject to its withdrawal in
accordance with Section 3.16(c). In the event that any loss shall be incurred
in respect of any Permitted Investment on deposit in any of the Certificate
Account, the Distribution Accounts or the REO Account, the Servicer (in the
case of the Certificate Account and the Distribution Accounts) or the Special
Servicer (in the case of the REO Account) shall deposit therein, no later than
the Servicer Remittance Date, without right of reimbursement, the amount of the
Net Investment Loss, if any, with respect to such account for the period from
the immediately preceding Distribution Date to such Servicer Remittance Date.
77
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated
to any Class shall, take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of
appropriate proceedings.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Servicer shall use its reasonable best efforts to cause the
Mortgagor to maintain, to the extent required by the terms of the related
Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain,
for each Mortgage Loan all Insurance Policy coverage as is required under the
related Mortgage (to the extent that the Trustee has an insurable interest and
such Insurance Policy coverage is available at commercially reasonable rates,
consistent with the Servicing Standards); provided, however, that if the
Servicer obtains such insurance, the related Insurance Policy shall include a
replacement cost endorsement providing for no deduction for depreciation but in
any event in an amount sufficient to avoid the application of any co-insurance
clause unless otherwise permitted in the related Mortgage Loan documents;
provided further, that if any Mortgage permits the holder thereof to dictate to
the Mortgagor the Insurance Policy coverage to be maintained on such Mortgaged
Property, the Servicer shall impose such insurance requirements as are
consistent with the Servicing Standards. Subject to Section 3.17(a), the
Special Servicer shall maintain for each REO Property no less Insurance Policy
coverage than was previously required of the Mortgagor under the related
Mortgage Loan. All such Insurance Policies shall (i) contain a "standard"
mortgagee clause, with loss payable to the Servicer on behalf of the Trustee
(in the case of insurance maintained in respect of the Mortgage Loans other
than REO Properties), (ii) be in the name of the Special Servicer (in the case
of insurance maintained in respect of REO Properties) on behalf of the Trustee,
(iii) include coverage in an amount not less than the lesser of the full
replacement cost of the REO Property without reduction for depreciation or the
outstanding principal balance owing on the related REO Loan but in any event in
an amount sufficient to avoid the application of any co-insurance clause unless
otherwise permitted in the related Mortgage Loan documents, (iv) include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents)
and (v) be issued by a Qualified Insurer authorized under applicable law to
issue such Insurance Policies. Any amounts collected by the Servicer or the
Special Servicer under any such Insurance Policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case in
accordance with the Servicing Standards and the provisions of the related
Mortgage Loan) shall be deposited in the Certificate Account, subject to
withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in
maintaining any such Insurance Policies in respect of Mortgage Loans (other
than REO Properties) (i) if the Mortgagor defaults on its obligation to do so,
shall be advanced by the Servicer (or, if required by Section 3.03(c) the
Trustee or the Fiscal Agent, as applicable) as a Servicing Advance and will be
charged to the related Mortgagor and (ii) shall not, for purposes thereof,
including, without limitation, calculating monthly distributions to
Certificateholders, be
78
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. Any cost
incurred by the Special Servicer in maintaining any such Insurance Policies
with respect to REO Properties shall be an expense of the Trust payable out of
the related REO Account pursuant to Section 3.16(c) or, if the amount on
deposit therein is insufficient therefor, advanced by the Servicer (or, if
required by Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as
a Servicing Advance.
(b)(i) If the Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans or REO Properties, as the
case may be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause fire and
hazard insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which
case the Servicer or the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a fire and hazard
Insurance Policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance 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 such deductible limitation, the deductible limitation
which is consistent with the Servicing Standards. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket Insurance Policy in a timely
fashion in accordance with the terms of such policy. The Special Servicer, to
the extent consistent with the Servicing Standards, may maintain, earthquake
insurance on REO Properties, provided coverage is available at commercially
reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If the Servicer or the Special Servicer shall cause any Mortgaged
Property or REO Property to be covered by a master single interest insurance
policy with a Qualified Insurer naming the Servicer or the Special Servicer on
behalf of the Trustee as the loss payee, then to the extent such Insurance
Policy provides protection equivalent to the individual policies otherwise
required, the Servicer or the Special Servicer shall conclusively be deemed to
have satisfied its obligation to cause such insurance to be maintained on the
related Mortgage Properties and REO Properties. In the event the Servicer or
the Special Servicer shall cause any Mortgaged Property or REO Property to be
covered by such master single interest insurance policy, the incremental costs
of such insurance applicable to such Mortgaged Property or REO Property (i.e.,
other than any minimum or standby premium payable for such policy whether or
not any Mortgaged Property or REO Property is covered thereby) shall be paid by
the Servicer (or, if required by Section 3.03(c), the Trustee or the Fiscal
Agent, as applicable) as a Servicing Advance. Such master single interest
policy may contain a deductible clause, in which case the Servicer or the
Special Servicer shall, in the event that there shall not have been maintained
on the related Mortgaged Property or REO Property a policy otherwise complying
79
with the provisions of Section 3.07(a), and there shall have been one or more
losses which would have been covered by such policy had it been maintained,
deposit into the Certificate Account from its own funds the amount not
otherwise payable under the master single interest 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 Standards.
(c) Each of the Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicer's and the
Special Servicer's, as applicable, officers and employees and other persons
acting on behalf of the Servicer and the Special Servicer in connection with
its activities under this Agreement with a deductible clause that in no event
exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the
fidelity bond or errors and omissions policy. The Servicer or the Special
Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be
named as a loss payee on each such fidelity bond and errors and omissions
policy. Notwithstanding the foregoing, so long as the long term debt or the
deposit obligations or claims-paying ability of the Servicer (or its immediate
or remote parent) is rated at least "A" by ▇▇▇▇▇'▇ and "A" by DCR (or, if not
rated by DCR, similarly rated by one NRSRO in addition to ▇▇▇▇▇'▇), the
Servicer (or the Servicer's immediate or remote parent) shall be allowed to
provide self-insurance with respect to a fidelity bond; provided, however, that
if such self-insurance is provided by the Servicer's immediate or remote
parent, the Servicer shall deliver to each Rating Agency a copy of the
agreement pursuant to which such parent is obligated to insure the Servicer
with respect to a fidelity bond. The amount of coverage shall be at least equal
to the coverage that would be required by FNMA or FHLMC, whichever is greater,
with respect to the Servicer or the Special Servicer if the Servicer or the
Special Servicer, as applicable, were servicing and administering the Mortgage
Loans or Specially Serviced Mortgage Loans, as applicable, for FNMA or FHLMC.
Coverage of the Servicer or the Special Servicer under a policy or bond
obtained by an Affiliate of the Servicer or the Special Servicer and providing
the coverage required by this Section 3.07(c) shall satisfy the requirements of
this Section 3.07(c). The Special Servicer and the Servicer will promptly
report in writing to the Trustee any material changes that may occur in their
respective fidelity bonds, if any, and/or their respective errors and omissions
Insurance Policies, as the case may be, and will furnish to the Trustee copies
of all binders and policies or certificates evidencing that such bonds, if any,
and insurance policies are in full force and effect.
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (and such flood insurance has
been made available), the Servicer will use its reasonable best efforts to
cause the related Mortgagor (in accordance with applicable law and the terms of
the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by the Servicer in
accordance with the Servicing Standards), flood insurance in respect thereof,
but only to the extent the related Mortgage Loan permits the mortgagee to
require such coverage and the maintenance of such coverage is consistent with
the Servicing Standards. Such flood insurance shall be in an amount not less
80
than the lesser of (i) the unpaid principal balance of the related Mortgage
Loan, and (ii) the maximum amount of insurance which is available under the
Flood Disaster Protection Act of 1973, as amended. If the cost of any insurance
described above is not borne by the Mortgagor, the Servicer shall promptly make
a Servicing Advance for such costs, subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not
less than the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. The cost of any such flood
insurance with respect to an REO Property shall be an expense of the Trust
payable out of the related REO Account pursuant to Section 3.16(c) or, if the
amount on deposit therein is insufficient therefor, paid by the Servicer or the
Trustee or Fiscal Agent, as applicable, as a Servicing Advance.
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan or Specially Serviced 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 or Specially Serviced
Mortgage Loan shall (or may at the mortgagee's option) become due and
payable upon the sale or other transfer of an interest in the related
Mortgaged Property or
(ii) provides that such Mortgage Loan or Specially Serviced
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, the Servicer, as
to Mortgage Loans that are not Specially Serviced Mortgage Loans or
the Special Servicer, as to Specially Serviced Mortgage Loans, on
behalf of the Trustee as the mortgagee of record, shall exercise (or
waive its right to exercise) any right it may have with respect, as
applicable, to such Mortgage Loan or Specially Serviced 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 Standards.
(b) As to each Mortgage Loan or Specially Serviced 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 or Specially Serviced
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
81
Mortgage Loan or Specially Serviced Mortgage Loan is included in the
Trust Fund, the Servicer, as to the Mortgage Loans that are not
Specially Serviced Mortgage Loans, or the Special Servicer, as to
Specially Serviced Mortgage Loans, on behalf of the Trustee as the
mortgagee of record, shall 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 Standards.
(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.
(d) Except as otherwise permitted by Section 3.20, neither the
Servicer nor the Special Servicer shall agree to modify, waive or amend any
term of any Mortgage Loan in connection with the taking of, or the failure to
take, any action pursuant to this Section 3.08, other than the identity of the
borrower pursuant to an assumption agreement.
(e) Notwithstanding the foregoing, neither the Servicer nor the
Special Servicer shall waive any rights under a "due-on-encumbrance" clause or
under any "due-on-sale" clause with respect to any Mortgage Loan the principal
balance of which is greater than 2% of the Stated Principal Balance of all
Mortgage Loans contained within the Trust Fund, unless it obtains from each
Rating Agency a written confirmation that such waiver would not cause a
downgrading, qualification or withdrawal of the rating then assigned to any of
the Certificates; provided, however, that so long as all Holders of each Class
of Certificates the ratings of which would otherwise be downgraded, qualified
or withdrawn consent to such waiver, such Rating Agency confirmation will not
be required. Each Rating Agency shall nevertheless, be provided with copies of
all documentation relating to any waiver by the Servicer or the Special
Servicer of rights under any "due-on-encumbrance" or "due-on-sale" clause with
respect to any Mortgage Loan.
(f) Notwithstanding any other provisions of this Section 3.08, the
Servicer may grant, without any Rating Agency confirmation as provided in
clause (e) above or Special Servicer approval, a Mortgagor's request for
consent to subject the related Mortgaged Property to an easement or
right-of-way for utilities, access, parking, public improvements or another
purpose, and may consent to subordination of the related Mortgage Loan to such
easement or right-of-way provided the Servicer shall have determined in
accordance with the Servicing Standards that such easement or right-of-way
shall not materially interfere with the then-current use of the related
Mortgaged Property, or the security intended to be provided by such Mortgage,
the related Mortgagor's ability to repay the Mortgage Loan, or materially or
adversely affect the value of such Mortgaged Property.
82
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 Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such
Mortgage Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments,
and which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
Servicer shall not be required to make a Servicing Advance and expend funds
toward the restoration of such property unless the Special Servicer has
determined in its reasonable discretion that such restoration will increase the
net proceeds of liquidation of such Mortgaged Property to Certificateholders
after reimbursement to the Servicer for such Servicing Advance, and the
Servicer has determined that such Servicing Advance together with accrued and
unpaid interest thereon will be recoverable by the Servicer out of the proceeds
of liquidation of such Mortgaged Property, as contemplated in Section
3.05(a)(iv). The Special Servicer shall be responsible for all other costs and
expenses incurred by it in any such proceedings; provided, however, that the
Servicer (or, if required pursuant to Section 3.03(c) hereof, the Trustee or
Fiscal Agent) shall advance such costs and expenses to the Special Servicer as
a Servicing Advance except to the extent that any such cost or expense would,
if incurred, constitute a Nonrecoverable Servicing Advance. Nothing contained
in this Section 3.09 shall be construed so as to require the Servicer or the
Special Servicer, on behalf of the Trust, to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by the Servicer or the
Special Servicer in its reasonable and good faith judgment taking into account
the factors described in Section 3.18(d) and the results of any Appraisal
obtained pursuant to the following sentence, all such bids to be made in a
manner consistent with the Servicing Standards. If and when the Special
Servicer or the Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan, whether for purposes of bidding at foreclosure or
otherwise, the Special Servicer or the Servicer, as the case may be, is
authorized to have an Appraisal performed with respect to such property by an
Independent MAI-designated appraiser the cost of which shall be paid by the
Servicer (or, if required by Section 3.03(c), the Trustee or the Fiscal Agent,
as applicable) as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be a Servicing Advance) to the effect
that the holding of such personal property by the Trust Fund will not
cause the imposition of a tax on the Lower-Tier
83
REMIC or the Upper-Tier REMIC under the REMIC Provisions or cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC
at any time that any Uncertificated Lower-Tier Interest or Certificate
is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property in lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result
of any such action, the Trustee, on behalf of the Certificateholders, would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA
or any comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously determined
in accordance with the Servicing Standards, based on an Environmental
Assessment of such Mortgaged Property performed by an Independent Person who
regularly conducts Environmental Assessments, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such
actions as are necessary to bring the Mortgaged Property in compliance
therewith is reasonably likely to produce a greater recovery on a
present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could be required, that taking such actions with respect to such
Mortgaged Property is reasonably likely to produce a greater recovery
on a present value basis than not taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer or the Trustee or Fiscal Agent, as applicable, as a Servicing Advance
as the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding sentence may be withdrawn from
the Certificate Account at the direction of the Special Servicer as an expense
of the Trust Fund pursuant to Section 3.05(a)(ix); and if any such
Environmental Assessment so warrants, the Special Servicer shall, at the
expense of the Trust Fund, perform such additional environmental testing as it
deems necessary and prudent to determine whether the conditions described in
clauses (i) and (ii) of the preceding sentence have been satisfied.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been
no breach of any of the representations and warranties set forth in or required
to be made pursuant to Section 3.2 of the Mortgage Loan Purchase and Sale
Agreement for which the Mortgage Loan Seller could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 3.3 of the Mortgage Loan
Purchase and Sale Agreement, then the Special Servicer shall take such action
as it deems to be in the best economic interest of the Trust Fund (other than
proceeding to acquire title to the Mortgaged Property) and is hereby authorized
at
84
such time as it deems appropriate to release such Mortgaged Property from the
lien of the related Mortgage.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent and the 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, in each case until the earlier to
occur of satisfaction of both such conditions, repurchase of the related
Mortgage Loan by the Mortgage Loan Seller or release of the lien of the related
Mortgage on such Mortgaged Property. The Trustee shall forward, or cause to be
forwarded all such reports to the Certificateholders and each Rating Agency
promptly following the receipt thereof. In addition, the Servicer will deliver,
or cause to be delivered to the Class F, Class G, Class H, Class I, Class J and
Class K Certificateholders a copy of any such written reports and any
Environmental Assessments within 15 days after receipt of such written reports
and Environmental Assessments from the Special Servicer.
(f) The Servicer shall report to the Internal Revenue Service and the
related Mortgagor, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property which is abandoned or
foreclosed and the Servicer shall report, via Form 1099C, all forgiveness of
indebtedness. The Special Servicer shall provide the Servicer with such
information or reports that the Servicer deems necessary to fulfill its
obligations under this paragraph (f) promptly upon the Servicer's request
therefor. The Servicer shall deliver a copy of any such report to the Trustee
and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, 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.
(h) The Special Servicer shall maintain accurate records, prepared by
one of its Servicing Officers, of each Final Recovery Determination in respect
of a Defaulted Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Servicer no later than the next succeeding P&I Advance
Determination Date.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer or the Special Servicer, as the case may be, of a notification
that payment in full shall be escrowed in a manner customary for such purposes,
the Servicer or Special Servicer, as the case may be, will immediately notify
the Trustee and request delivery of the related Mortgage File. Any such notice
and request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Certificate Account
85
pursuant to Section 3.04(a) or remitted to the Servicer to enable such deposit,
have been or will be so deposited. Within seven Business Days (or within such
shorter period as release can reasonably be accomplished if the Servicer
notifies the Trustee of an exigency) of receipt of such notice and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Servicer or Special Servicer, as the case may be. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan, the Servicer or the Special Servicer shall deliver to the
Trustee a Request for Release signed by a Servicing Officer. Upon receipt of
the foregoing, the Trustee shall deliver or cause the related Custodian to
deliver, the Mortgage File or any document therein to the Servicer or the
Special Servicer (or a designee), as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to the Trustee of a certificate of a Servicing Officer of the Servicer
or the Special Servicer, as the case may be, 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 Certificate
Account pursuant to Section 3.04(a) have been or will be so deposited, or that
such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee to the Servicer or the Special
Servicer (or a designee), as the case may be, with the original being released
upon termination of the Trust.
(c) Within five Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's
sale or other documents necessary to the 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 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. The
Special Servicer shall be responsible for the preparation of all such documents
and pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall
be entitled to receive the Servicing Fee with respect to each Mortgage Loan and
REO Loan. As to each Mortgage Loan and REO Loan, the Servicing Fee shall accrue
from time to time at the Servicing Fee Rate and shall be computed on the basis
of the Stated Principal Balance of such Mortgage Loan as of the immediately
preceding Distribution Date (in each case, after giving effect to the
distribution of principal of such Mortgage Loan on such Distribution Date) and
a 360-day year
86
consisting of 12 30-day months and, in connection with any
partial month interest payment, for the same period respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan or
REO Loan (and any interest on Advances) shall cease to accrue if a Liquidation
Event occurs in respect thereof. The Servicing Fee shall be payable monthly, on
a loan-by-loan basis, from payments of interest (as may be advanced by a P&I
Advance) on each Mortgage Loan and REO Revenues allocable as interest on each
REO Loan. The Servicer shall be entitled to recover unpaid Servicing Fees in
respect of any Mortgage Loan or REO Loan out of that portion of related
payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and REO
Revenues (in the case of an REO Loan) allocable as recoveries of interest, to
the extent permitted by Section 3.05(a). The right to receive the Servicing Fee
may not be transferred in whole or in part except in connection with the
transfer of all of the Servicer's responsibilities and obligations under this
Agreement. The Servicer shall pay, from its own funds, the Trustee Fee and the
annual fees of each Rating Agency without being entitled to reimbursement of
such amounts as a Servicing Advance or otherwise.
Additional servicing compensation in the form of all assumption fees
paid by the Mortgagor on Mortgage Loans that are not Specially Serviced
Mortgage Loans and only to the extent that all amounts then due and payable
with respect to the related Mortgage Loan (including interest on Advances) have
been paid, and charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, in each case only to the
extent actually paid by the related Mortgagor, shall be retained by the
Servicer and shall not be required to be deposited in the Certificate Account
pursuant to Section 3.04(a). The Servicer shall also be entitled to additional
servicing compensation in the form of: (i) Penalty Charges received on the
Mortgage Loans (other than Specially Serviced Mortgage Loans), but only to the
extent actually paid by the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
(including interest on Advances) have been paid and are not needed to pay
interest on Advances with respect to any other Mortgage Loan; (ii) interest or
other income earned on deposits relating to the Trust Fund in the Certificate
Account and the Distribution Accounts in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to each
such account for each period from any Distribution Date to the immediately
succeeding Servicer Remittance Date); and (iii) interest earned on deposits in
the Servicing Account which are not required by applicable law or the related
Mortgage Loan to be paid to the Mortgagor. The Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of its Sub-Servicers and the premiums for any
blanket Insurance Policy insuring against hazard losses pursuant to Section
3.07), if and to the extent such expenses are not payable directly out of the
Certificate Account, and the Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and 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 and shall be computed on
87
the basis of the Stated Principal Balance of such Specially Serviced Mortgage
Loan or REO Loan as of the immediately preceding Distribution Date (in each
case, after giving effect to the distribution of principal of such Mortgage
Loan on such Distribution Date) and a 360-day year consisting of 12 30-day
months and, in connection with any partial month interest payment, for the same
period respecting which any related interest payment due on such Specially
Serviced Mortgage Loan or deemed to be due on such REO Loan is computed. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. The Special Servicing Fee shall be payable monthly, on a loan-by-loan
basis, to the extent permitted by Section 3.05(a). The right to receive the
Special Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer's responsibilities
and obligations under this Agreement.
Additional servicing compensation in the form of (a) all assumption
fees received on Specially Serviced Mortgage Loans and (b) all modification
fees received on all Mortgage Loans, regardless of whether or not such Mortgage
Loans are Specially Serviced Mortgage Loans, but only to the extent actually
collected from the related Mortgagor and only to the extent that all amounts
then due and payable with respect to the related Mortgage Loan (including those
payable to the Servicer pursuant to Section 3.11(a)) have been paid, shall be
promptly paid to the Special Servicer by the Servicer and shall not be required
to be deposited in the Certificate Account pursuant to Section 3.04(a). The
Special Servicer shall also be entitled to additional servicing compensation in
the form of a Workout Fee with respect to each Corrected Mortgage Loan at the
Workout Fee Rate 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 such loan again becomes a Specially Serviced Mortgage
Loan; 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 by resignation), it shall retain the
right to receive any and all Workout Fees payable with respect to Mortgage
Loans that became Corrected Mortgage Loans during the period that it acted as
Special Servicer and were Corrected Mortgage Loans at the time of such
termination (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the terms hereof. A Liquidation
Fee will be payable with respect to each Specially Serviced Mortgage Loan as to
which the Special Servicer receives any Liquidation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee. Notwithstanding
anything to the contrary described above, no Liquidation Fee will be payable
based on, or out of, Liquidation Proceeds received in connection with the
repurchase of any Mortgage Loan by the Mortgage Loan Seller for a breach of
representation or warranty or for defective or deficient Mortgage Loan
documentation, the purchase of any Specially Serviced Mortgage Loan by the
Controlling Class Certificateholder holding the largest Certificate Balance of
the Certificates of the Controlling Class, the Special Servicer or the Holders
of Class LR Certificates or the purchase of all of the Mortgage Loans and REO
Properties in connection with an optional termination of the Trust Fund
pursuant to Section 9.01. If, however, Liquidation Proceeds are received with
respect to any Corrected Mortgage Loan and the Special Servicer is properly
entitled to a Workout Fee, such Workout Fee will be payable based on and out of
the portion of such Liquidation Proceeds that constitute
88
principal and/or interest on such Mortgage Loan. The Special Servicer will also
be entitled to additional fees in the form of Penalty Charges on Specially
Serviced Mortgage Loans (but only to the extent actually collected from the
related Mortgagor and to the extent that all amounts then due and payable with
respect to the related Mortgage Loan (including interest on Advances) have been
paid and are not needed to pay interest on Advances with respect to any other
Mortgage Loan). The Special Servicer shall have the right to consent to any
assumption of a Mortgage Loan, which consent may not be unreasonably withheld;
provided, however, that if the Special Servicer does not respond to a request
from the Servicer for consent to an assumption within ten Business Days of such
request it shall be deemed to have consented to such assumption. The Special
Servicer shall be entitled to receive a Review Fee from amounts received from
the related Mortgagor with respect to every Mortgage Loan that is not a
Specially Serviced Mortgage Loan with respect to which it consents to an
assumption. The Special Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts, other than
management fees in respect of REO Properties, due and owing to any of its
Sub-Servicers and the premiums for any blanket Insurance Policy obtained by it
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Certificate Account or the
REO Account, and the Special Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected during the related Due Period
shall first be applied to reimburse the Servicer or the Trustee or Fiscal Agent
for interest on Advances due on such Distribution Date, and any Penalty Charges
remaining thereafter shall be distributed pro rata to the Servicer and the
Special Servicer based upon the amount of Penalty Charges the Servicer or the
Special Servicer would otherwise have been entitled to receive during such
period without any such application.
SECTION 3.12. Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall cause to
be performed (at its own expense), a physical inspection of each Mortgaged
Property at such times and in such manner as are consistent with the Servicing
Standards, but in any event shall inspect each Mortgaged Property securing a
Mortgage Note with a Stated Principal Balance of (a) $2,000,000 or more at
least once every 12 months and (b) less than $2,000,000 at least once every 24
months, in each case commencing in the calendar year 1999; provided, however,
that if the Servicer has a reasonable basis to believe that (i) the Debt
Service Coverage Ratio with respect to any Mortgaged Property has decreased by
25% or more from the Debt Service Coverage Ratio as of the Cut-off Date or (ii)
the Debt Service Coverage Ratio with respect to any Mortgaged Property has
decreased to 1.05x or less, the Servicer shall inspect the related Mortgaged
Property as soon as practicable thereafter (the cost of which inspection shall
be at the expense of the Trust Fund); provided, further, however, that if any
scheduled payment becomes more than 60 days delinquent on the related Mortgage
Loan, the Special Servicer shall inspect the related Mortgaged Property as soon
as practicable thereafter. The cost of such inspection by the Special Servicer
shall be an expense of the Trust Fund. The Special Servicer
89
or the Servicer, as applicable, shall prepare or cause to be prepared a written
report of each such inspection detailing the condition of the Mortgaged
Property and specifying the existence of (i) any vacancy in the Mortgaged
Property that the preparer of such report deems material, (ii) any sale,
transfer or abandonment of the Mortgaged Property, (iii) any adverse change in
the condition of the Mortgaged Property that the preparer of such report deems
material and (iv) any visible waste committed on the Mortgaged Property. The
Special Servicer and the Servicer shall deliver a copy of each such report
prepared by the Special Servicer and the Servicer, respectively, to the other,
the Trustee, the Paying Agent, each Rating Agency, the Underwriter, the
Placement Agent and each Holder of a Class F, Class G, Class H, Class I, Class
J and Class K Certificate, within 60 days of its preparation.
(b) The Special Servicer or Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual and quarterly
operating statements and rent rolls of the related Mortgaged Property,
financial statements of such Mortgagor and any other reports required to be
delivered under the terms of the Mortgage Loans, if delivery of such items is
required pursuant to the terms of the related Mortgage. The Special Servicer or
Servicer, as applicable, shall promptly: (i) review all such items as may be
collected and (ii) prepare written reports in the form of Exhibits I-7 and I-8
based on such reviews identifying the Debt Service Coverage Ratios for the
related Mortgage Loans. The Special Servicer shall deliver copies of the
collected items, and the written reports in the form of Exhibits I-7 and I-8 or
a in a format acceptable to Servicer, in each case within 20 days of its
receipt or preparation, as applicable, but in no event less than annually by
June 1st of each year. The Servicer shall deliver copies of the collected
items, and of reports in the form of Exhibits I-7 and I-8 in respect of the
written reports prepared in respect thereof or received from the Special
Servicer in an electronic format mutually agreed upon by the Servicer and the
Trustee, to the Trustee. To the extent received from the Servicer, the Trustee
shall deliver reports in the form of Exhibits I-7 and I-8 to the Rating
Agencies, the Underwriter, the Placement Agent and each Holder of a Class F,
Class G, Class H and Class I, Class J and Class K Certificate, via diskette or
other electronic transmission and by written report to follow, in each case
(other than quarterly operating statements received by the Servicer, which will
be provided to the Rating Agencies and the Directing Certificateholder, and
otherwise, only upon request (which such request may state that such operating
statements be delivered until further notice)) within 30 days of its receipt or
preparation, as applicable, beginning in August, 1998 but thereafter in no
event less frequently than annually by June 30th of each year.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to the
Trustee, with a copy to the Paying Agent, each Rating Agency and the Depositor,
on or before April 30th of each year, beginning April 30, 1999, an Officer's
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the Servicer or the Special Servicer, as the case may be, during
the preceding calendar year and of its performance under this Agreement has
been made under such officer's supervision, (ii) to the best of such officer's
knowledge, based on such review, the Servicer or the Special Servicer, as the
case may be, has maintained an effective internal control system relating to
its servicing of the Mortgage Loans serviced by it and has fulfilled in all
90
material respects its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and (iii) the Servicer or the Special Servicer, as the case may be, has
received no notice regarding qualification, or challenging the status, of
either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC from the
Internal Revenue Service or any other governmental agency or body or, if it has
received any such notice, specifying the details thereof. A copy of such
Officer's Certificate may be obtained by Certificateholders upon written
request to the Trustee pursuant to Section 8.12 hereof.
SECTION 3.14. Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Servicer or the Special Servicer, as the case may
be, the Trustee, the Paying Agent and each Rating Agency, on or before April
30th of each year, commencing with 1999, a report stating that (i) it has
obtained from the Servicer or the Special Servicer, as the case may be, a
letter of representation regarding certain matters from the management of the
Servicer or the Special Servicer, as the case may be, which includes an
assertion that the Servicer or the Special Servicer, as the case may be, has
maintained an effective internal control system with respect to the servicing
of the Mortgage Loans and has complied with certain minimum mortgage loan
servicing standards (to the extent applicable to commercial, multifamily and
mobile home community mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the Servicer's or the Special
Servicer's, as the case may be, servicing of commercial, multifamily and mobile
home community mortgage loans during the most recently completed calendar year
and (ii) on the basis of an examination conducted by such firm in accordance
with standards established by the American Institute of Certified Public
Accountants, such assertion is fairly stated in all material respects, subject
to such exceptions and other qualifications that, in the opinion of such firm,
such standards require it to report. In rendering its report such firm may
rely, as to the matters relating to the direct servicing of commercial,
multifamily and mobile home community 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 1 year of such statement) with respect to those
Sub-Servicers.
SECTION 3.15. Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or cause
to be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Servicer, or to the Special Servicer, as
applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and each Holder of a Class F,
Class G, Class H, Class I, Class J and Class K Certificate, access to any
documentation regarding the Mortgage Loans and the Trust Fund
91
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
Servicer or the Special Servicer, as the case may be, designated by it;
provided, however, that the Class F, Class G, Class H, Class I, Class J and
Class K Certificateholders shall be required to pay a reasonable and customary
fee for access to the aforementioned information, shall pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information. Nothing in this Section 3.15 shall
detract from the obligation of the Servicer and the Special Servicer to observe
any applicable law prohibiting disclosure of information with respect to the
Mortgagors, and the failure of the Servicer or the Special Servicer to provide
access as provided in this Section 3.15 as a result of such obligation shall
not constitute a breach of this Section 3.15. The Servicer and the Special
Servicer may each deny any of the foregoing persons access to confidential
information or to any intellectual property which the Servicer or the Special
Servicer is restricted by license or contract from disclosing. Notwithstanding
the foregoing, the Servicer and the Special Servicer shall maintain separate
from such confidential information and intellectual property, all documentation
regarding the Mortgage Loans that is not confidential.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee on behalf of the Certificateholders. The
Special Servicer, on behalf of the Trust Fund, shall sell any REO Property
prior to the close of the third calendar year following the year in which the
Trust Fund acquires ownership of such REO Property, within the meaning of
Treasury Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8)
of the Code, unless the Special Servicer either (i) is granted an extension of
time (an "REO Extension") by the Internal Revenue Service to sell such REO
Property or (ii) obtains for the Trustee and the Servicer an Opinion of Counsel
(the cost of which shall be paid as a Servicing Advance), addressed to the
Trustee and the Servicer, to the effect that the holding by the Trust Fund of
such REO Property subsequent to such third anniversary of such acquisition will
not result in the imposition of taxes on "prohibited transactions" of the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC constituted thereby as
defined in Section 860F of the Code or cause either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or 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 the immediately preceding sentence, the Special Servicer
shall sell such REO Property within such longer period as is permitted by such
REO Extension or such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its being granted the REO
Extension contemplated by clause (i) of the second preceding sentence shall be
an expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its
own funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more REO Accounts, held on behalf
of the Trustee in trust for the benefit of the Certificateholders,
92
for the retention of revenues and other proceeds derived from each REO
Property. The REO Account shall be an Eligible Account. The Special Servicer
shall deposit, or cause to be deposited, in the REO Account, within one
Business Day after receipt, all REO Revenues, Insurance and Condemnation
Proceeds and Liquidation Proceeds received by it in respect of an REO Property.
Funds in the REO Account may be invested in Permitted Investments in accordance
with Section 3.06. The Special Servicer shall give notice to the Trustee and
the Servicer of the location of the REO Account when first established and of
the new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit
in the REO Account relating to such REO Property. No later than 12:00 p.m.
Dallas time on the Business Day immediately following each Determination Date,
the Special Servicer shall deposit into the Certificate Account the aggregate
of all amounts received in respect of each REO Property during the most
recently ended Due Period, net of any withdrawals made out of such amounts
pursuant to the preceding sentence; provided, however, that the Special
Servicer may retain in such REO Account, in accordance with the Servicing
Standards, such portion of such balance as may be necessary to maintain a
reasonable reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, no later than 3:00 p.m. Dallas time on the Business Day immediately
following each Determination Date, the Special Servicer shall provide the
Servicer with an accounting, on a loan by loan basis in an electronic format
reasonably determined by the Servicer, of amounts deposited in the Certificate
Account on such date.
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment). Subject to
this Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Code Section 860G(d) if it determines that
earning such income is in the best interests of Certificateholders on a net
after-tax basis as compared with net leasing such REO Property or operating
such REO Property on a different basis. In connection therewith, the Special
Servicer shall deposit or cause to be deposited on a daily basis
93
(and in no event later than the Business Day following receipt of such funds)
in the applicable REO Account all revenues received by it with respect to each
REO Property and the related REO Loan, and shall withdraw from the REO Account,
to the extent of amounts on deposit therein with respect to such REO Property,
funds necessary for the proper operation, management, leasing and maintenance
of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease
such REO Property.
To the extent that amounts on deposit in the REO Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee, the Paying
Agent and the Depositor) if such advances would, if made, constitute
Nonrecoverable Servicing Advances. The Special Servicer shall give the Servicer
and the Trustee not less than five Business Days' notice, together with all
information reasonably requested by the Servicer (upon which the Servicer may
conclusively rely) before the date on which the Servicer is requested to make
any Servicing Advance with respect to an REO Property; provided, however, that
only two Business Days' notice shall be required in respect of Servicing
Advances required to be made on an urgent or emergency basis (which may
include, without limitation, Servicing Advances required to make tax or
insurance payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) permit any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
94
(iv) Directly Operate, or allow any other Person, other than
an Independent Contractor, to Directly Operate, any REO Property on
any date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer (or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing
Advance) to the effect that such action will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code at any time that it is held by the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
an expense of the Trust Fund) shall be reasonable and customary in
light of the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those
listed in subsection (a) hereof, and (B) remit all related revenues
collected (net of its fees and such costs and expenses) to the Special
Servicer no less frequently than monthly;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of
its duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its
duties and obligations hereunder for indemnification of the Special Servicer
and the Trust by such Independent Contractor, and nothing in this Agreement
shall be deemed to limit or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Servicer a statement prepared by the Special Servicer setting
forth the amount of net income or net loss, as determined for federal income
tax purposes, resulting from the operation and
95
management of a trade or business on, the furnishing or rendering of a
non-customary service to the tenants of, or the receipt of any other amount not
constituting Rents from Real Property in respect of, any REO Property in
accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties.
(a) Each of the Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a 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 Section 2.03(b) and
Section 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted Mortgage
Loan and the Special Servicer has determined in good faith that such Defaulted
Mortgage Loan will become subject to foreclosure proceedings, the Special
Servicer shall promptly so notify in writing the Trustee, the Servicer and the
Controlling Class Certificateholder holding the largest Certificate Balance of
the Certificates of the Controlling Class. The Special Servicer, the Servicer
and the Controlling Class Certificateholder holding the largest Certificate
Balance of the Certificates of the Controlling Class may at their respective
option purchase such Defaulted Mortgage Loan from the Trust Fund, at a price
equal to the Purchase Price; provided, however, that the Controlling Class
Certificateholder holding the largest Certificate Balance of the Certificates
of the Controlling Class shall have the first right to exercise such option,
which first right of refusal shall extend for 10 Business Days following its
receipt of notification of the Servicer's determination. The Purchase Price for
any Defaulted Mortgage Loan purchased hereunder shall be deposited into the
Certificate Account, and the Trustee, upon receipt of an Officer's Certificate
from the Special Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Special Servicer or the Servicer, as the
case may be, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Special Servicer or the Servicer (in that order),
as the case may be, ownership of such Defaulted Mortgage Loan.
(c) The Special Servicer may offer to sell any Defaulted Mortgage Loan
not otherwise purchased by the Special Servicer, the Servicer or the
Controlling Class Certificateholders pursuant to subsection (b) above, if and
when the Special Servicer determines, consistent with the Servicing Standards,
that such a sale would produce a greater recovery on a present value basis than
would liquidation of the related Mortgaged Property. Such offering shall be
made in a commercially reasonable manner. The Special Servicer shall accept the
highest cash bid received from any Person for such Defaulted Mortgage Loan in
an amount at least equal to the Purchase Price therefor; provided, that in the
absence of any such bid, the Special Servicer shall accept the highest cash bid
received from any Person that is determined by the Special Servicer to be a
fair price for such Defaulted Mortgage Loan. In the absence of any bid
determined (as provided below) to be a fair price, the Special Servicer shall
proceed with respect to such Defaulted Mortgage Loan in accordance with Section
3.09.
The Special Servicer shall use reasonable efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a fair
price within the time period provided
96
for by Section 3.16(a). Such solicitation shall be made in a commercially
reasonable manner. The Special Servicer shall accept the highest cash bid
received from any Person for such REO Property in an amount at least equal to
the Purchase Price therefor; provided that in the absence of any such bid, the
Special Servicer shall accept the highest cash bid received from any Person
that is determined by the Special Servicer to be a fair price for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price for any REO Property within the time constraints imposed
by Section 3.16(a), then the Special Servicer shall dispose of such REO
Property upon such terms and conditions as the Special Servicer shall deem
necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received. Notwithstanding the
foregoing, the Special Servicer shall not be obligated by the foregoing or
otherwise to accept the highest bid if the Special Servicer determines, in
accordance with the Servicing Standards, that rejection of such bid would be in
the best interests of the Certificateholders. In the event that the Special
Servicer determines with respect to any REO Property that the offers being made
with respect thereto are not in the best interests of the Certificateholders
and that the end of the period referred to in Section 3.16(a) with respect to
such REO Property is approaching, the Special Servicer shall seek an extension
of such period in the manner described in Section 3.16(a); provided, however,
that the Special Servicer shall use its best efforts, consistent with the
Servicing Standards, to sell any REO Property prior to two years prior to the
Rated Final Distribution Date.
The Special Servicer shall give the Trustee, the Servicer and the
Directing Certificateholder not less than three Business Days' prior written
notice of its intention to sell any Defaulted Mortgage Loan or REO Property. No
Interested Person shall be obligated to submit a bid to purchase any Defaulted
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(c), shall be determined by the Special Servicer, if the highest bidder is
a Person other than an Interested Person, and by the Trustee, if the highest
bidder is an Interested Person. In determining whether any bid received from an
Interested Person represents a fair price for any Defaulted Mortgage Loan or
any REO Property, the Trustee may conclusively rely on the opinion of an
Independent MAI-designated appraiser or other expert in real estate matters
retained by the Special Servicer at the expense of the Trust Fund. In
determining whether any bid constitutes a fair price for any Defaulted Mortgage
Loan or any REO Property, such appraiser or other expert in real estate matters
shall be instructed to take into account, as applicable, among other factors,
the period and amount of any delinquency on the affected Defaulted 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). The
Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all
cases be deemed a fair price.
97
(e) Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, and the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Mortgage Loan or any REO Property shall be
final and without recourse to the Trustee or the Trust Fund, and if such sale
is consummated in accordance with the terms of this Agreement, neither the
Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
SECTION 3.19. [Intentionally Omitted]
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in this Section 3.20(a) and Section 3.08, the
Servicer shall not agree to any modification, waiver or amendment of a Mortgage
Loan, and, except as provided in the following paragraph, Section 3.08(e),
Section 3.08(f) and in Section 3.20(d), no Mortgage Loan that is not a
Specially Serviced Mortgage Loan may be modified, waived or amended; provided,
however, that the Special Servicer may agree to extend the maturity date of a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided,
further, that no such extension entered into pursuant to this Section 3.20(a)
shall be for a period of more than twelve months from the original maturity
date of such Mortgage Loan or shall extend the maturity date beyond the earlier
of (i) two years prior to the Rated Final Distribution Date and (ii) in the
case of a Mortgage Loan secured by a leasehold estate, the date ten years prior
to the expiration of such leasehold estate. If such extension would extend the
Maturity Date of a Mortgage Loan for more than twelve months from and after the
original maturity date of such Mortgage Loan, the Special Servicer must provide
the Trustee with an Opinion of Counsel (at the expense of the related
Mortgagor) that such extension would not constitute a "significant
modification" of the Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b). Any substitution of collateral shall be treated hereunder
as a modification or amendment of the applicable Mortgage Loan.
Notwithstanding the foregoing, the Servicer may modify or amend the
terms of any Mortgage Loan without the consent of the Special Servicer in order
to (i) cure any ambiguity therein or (ii) correct or supplement any provisions
therein which may be inconsistent with any other provisions therein or correct
any error, provided that such modification or amendment would not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b), and provided further that the proposed
modification or amendment will not cause (x) either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
either the Upper-Tier REMIC or the Lower-Tier REMIC to be subject to any tax
under the REMIC Provisions.
Notwithstanding the foregoing, neither the Servicer nor the Special
Servicer shall permit the substitution of any Mortgaged Property (or any
portion thereof) at any time the Mortgage Loan is not in default pursuant to
the terms of the related Mortgage Loan documents unless it has received an
Opinion of Counsel to the effect that (i) such substitution will not cause the
98
related Mortgage Loan to fail to qualify as a "qualified mortgage" for REMIC
purposes, (ii) such substitution will not affect the status as a REMIC of
either the Upper-Tier REMIC or the Lower-Tier REMIC, and (iii) such
substitution will not subject the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC to any tax.
Notwithstanding the foregoing, but subject to the Terms of the
Mortgage Loans, neither the Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property pursuant to the defeasance provisions of
any Mortgage Loan at any time such Mortgage Loan is not in default pursuant to
the terms of the related Mortgage Loan documents unless the Servicer or the
Special Servicer, as applicable, has received (i) a certificate of an
Independent Certified public accountant (at the expense of the related
Mortgagor) to the effect that (A) in the event of a total defeasance such
substituted property will provide cash flows sufficient to meet all payments of
interest and principal (including payments at maturity) on such Mortgage Loan,
(B) in the event of a partial defeasance the remaining Mortgaged Properties
will have a Debt Service Coverage Ratio at least equal to the Debt Service
Coverage Ratio required by the related Mortgage Loan documents and (C) in
either case such defeasance is in compliance with the requirements of the terms
of the related Mortgage Loan documents, and (ii) one or more Opinions of
Counsel (at the expense of the related Mortgagor) to the effect that (1) such
substitution will not cause the related Mortgage Loan to fail to qualify as a
"qualified mortgage" for REMIC purposes, (2) such substitution will not affect
the status as a REMIC of either the Upper-Tier REMIC or the Lower-Tier REMIC,
(3) such substitution will not subject the Trust Fund, the Upper-Tier REMIC or
the Lower-Tier REMIC to any tax, and (4) the Trustee, on behalf of the Trust
Fund, will have a first priority perfected security interest in such
substituted Mortgaged Property and (5) to the extent permitted by the related
Mortgage Loan Documents (and to the extent that the lender can require the
same), the substituted Mortgaged Property will be held in a special-purpose
entity established for this purpose; provided, however, that to the extent the
related Mortgage Loan documents provide the lender with discretion, the
Servicer or the Special Servicer, as applicable, shall require that the related
Mortgagor pay the cost of any such opinion as a condition to granting such
defeasance. The Servicer or the Special Servicer, as applicable, shall notify
each Rating Agency of each defeasance of a Mortgage Loan pursuant to this
paragraph and shall provide each Rating Agency with a copy of each certificate
of a certified public accountant received by the Servicer pursuant to clause
(i) above and the Opinion of Counsel received by the Servicer pursuant to
clause (ii) above.
(b) If, but only if, the Special Servicer determines that a
modification, waiver or amendment (including, without limitation, the
forgiveness or deferral of interest or principal or the substitution of
collateral pursuant to the terms of the Mortgage Loan or otherwise, the release
of collateral or the pledge of additional collateral) of the terms of a
Specially Serviced Mortgage Loan with respect to which a payment default or
other material default has occurred or a payment default or other material
default is, in the Special Servicer's judgment, reasonably foreseeable (as
evidenced by an Officer's Certificate of the Special Servicer), is reasonably
likely to produce a greater recovery on a present value basis (the relevant
discounting to be performed at the related Mortgage Rate) than liquidation of
such Specially Serviced Mortgage Loan, then the Special Servicer may, but is
not required to, in the case of an extension of the maturity of a Specially
Serviced Mortgage Loan beyond the third anniversary of such Mortgage Loan's
99
original maturity date, agree to a modification, waiver or amendment of such
Specially Serviced Mortgage Loan, subject to the provisions of this Section
3.20(b) and Section 3.20(c).
The Special Servicer shall use its best efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize no
later than two years prior to the Rated Final Distribution Date and shall not
agree to a modification, waiver or amendment of any term of any Specially
Serviced Mortgage Loan if such modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced
Mortgage Loan to a date occurring later than the earlier of (a) two
years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate, the
date occurring ten years prior to the expiration of such leasehold;
(ii) reduce the related Mortgage Rate on any such Specially
Serviced Mortgage Loan to less than the lesser of (a) the Net Mortgage
Rate as of the Cut-off Date and (b) the highest Pass-Through Rate on
any Class of Certificate (other than the Class X Certificates); or
(iii) provide for the deferral of interest unless (a)
interest accrues thereon, generally, at the related Mortgage Rate and
(b) the aggregate amount of such deferred interest does not exceed 10%
of the unpaid principal balance of the Specially Serviced Mortgage
Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, no fee described in this paragraph shall be collected by any
Servicer or Special Servicer from a Mortgagor (or on behalf of the Mortgagor)
in conjunction with any consent or any modification, waiver or amendment of a
Mortgage Loan (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer may agree to any waiver, modification or amendment of a
Mortgage Loan that is not in default or as to which default is not reasonably
foreseeable only to the extent that it would not be a "significant
modification" of the Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b), provided that the proposed modification, amendment or
waiver will not cause (x) either the Lower-Tier REMIC or the Upper-Tier REMIC
to fail to qualify as a REMIC for purposes of the Code or (y) either the
Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax under the
REMIC Provisions. With respect to all modifications, amendments and waivers
entered into by the Special Servicer pursuant to this Section 3.20(d), the
Special Servicer shall provide the Trustee with an Opinion of Counsel (at the
expense of the related Mortgagor or such other Person requesting such
modification or, if such expense cannot be collected from the related Mortgagor
or such other Person, to be paid by the Servicer or the Trustee or Fiscal
Agent, as applicable, as a Servicing Advance) to the effect that the
contemplated waiver, modification or amendment (i) will not be a "significant
modification" of
100
the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b) and (ii) will not cause either clause (x) or (y) of this Section
3.20(d) to occur. Notwithstanding the foregoing, the Special Servicer may not
waive the payment of any Yield Maintenance Charge with respect to any Mortgage
Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification to a Mortgage Loan that creates
Mortgage Deferred Interest, such Mortgage Deferred Interest will be allocated
to reduce the Distributable Certificate Interest of one or more Classes of
Certificates pursuant to Section 4.06(a) and will be added to the Certificate
Balance of such Class or Classes pursuant to Section 4.06(b).
(f) Subject to Section 3.20(c), the 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, the
granting of which is within the Servicer's or the 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 the Servicer or the Special
Servicer, as the case may be, as additional servicing compensation, a
reasonable or customary fee, for the additional services performed in
connection with such request; provided, however, that the Special Servicer
shall not be entitled to compensation with respect to the assumption of any
Mortgage Loan that is not a Specially Serviced Mortgage Loan in excess of the
related Review Fee provided for in Section 3.11(c).
(g) All modifications, waivers and amendments of the Mortgage Loans
entered into pursuant to this Section 3.20 shall be in writing, signed by the
Servicer or the Special Servicer, as the case may be, and the related Mortgagor
(and by any guarantor of the related Mortgage Loan, if such guarantor's
signature is required by the Servicer or the Special Servicer, as the case may
be, in accordance with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies and the Trustee and each other in writing of any modification,
waiver or amendment of any term of any Mortgage Loan and the date thereof, and
shall deliver to the Trustee or the related Custodian for deposit in the
related Mortgage File, an original counterpart of the agreement relating to
such modification, waiver or amendment, promptly (and in any event within 10
Business Days) following the execution thereof. In addition, the Special
Servicer shall promptly send a copy of such a modification, waiver or amendment
to the Servicer. Within 15 days of the Servicer's delivery of the aforesaid
modification, waiver or amendment to the Trustee or its receipt from the
Special Servicer, as applicable, the Trustee shall forward a copy thereof to
each Holder of a Class F, Class G, Class H, Class I, Class J and Class K
Certificate.
101
SECTION 3.21. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the Servicer shall immediately give notice
thereof, and shall deliver the related Mortgage File and Credit File to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto. The Special Servicer may
conclusively rely upon any such documentation or information supplied to it by
the Servicer, in the absence of manifest error. The Servicer shall use its best
efforts to comply with the preceding sentence within 5 Business Days of the
occurrence of each related Servicing Transfer Event and in any event shall
continue to act as Servicer and administrator of such Mortgage Loan until the
Special Servicer has commenced the servicing of such Mortgage Loan, which will
commence upon receipt by the Special Servicer of the Mortgage File. The Trustee
shall deliver to the Paying Agent, the Underwriter, the Placement Agent and to
each Holder of a Class F, Class G, Class H, Class I, Class J and Class K
Certificate a copy of the notice of such Servicing Transfer Event provided by
the Servicer to the Special Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become current and has remained current for three consecutive
Monthly Payments (provided no additional Servicing Transfer Event is
foreseeable in the reasonable judgment of the Special Servicer), and that no
other Servicing Transfer Event is continuing with respect thereto, the Special
Servicer shall immediately give notice thereof, and shall return the related
Mortgage File and Credit File to the Servicer and upon giving such notice, and
returning such Mortgage File and Credit File to the Servicer, the Special
Servicer's obligation to service such Corrected Mortgage Loan shall terminate
and the obligations of the Servicer to fully service and administer such
Mortgage Loan shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with
a copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Mortgage Loan information including
correspondence with the related Mortgagor.
(c) No later than 3:00 p.m. Dallas time on the Business Day
immediately following each Determination Date, the Special Servicer shall
deliver to the Servicer and each Rating Agency the CSSA Standard Information
Package (upon which the Servicer and the Trustee may conclusively rely)
describing, on a loan-by-loan and property-by-property basis, (1) the
information described in clause (iv) of Section 4.02(a) with respect to each
Specially Serviced Mortgage Loan and the information described in clause (vii)
and (viii) of Section 4.02(a) with respect to each REO Property, (2) the amount
of all payments, Insurance and
102
Condemnation Proceeds and Liquidation Proceeds received with respect to each
Specially Serviced Mortgage Loan during the related Due Period, and the amount
of all REO Revenues, Insurance and Condemnation Proceeds and Liquidation
Proceeds received by it with respect to each REO Property during the related
Due Period, (3) the amount, purpose and date of all Servicing Advances made by
the Servicer with respect to each Specially Serviced Mortgage Loan and REO
Property during the related Due Period, (4) the information described in
clauses (iii), (iv)(C), (iv)(D), (v), (xiii) and (xv) of Section 4.02(a) and
(5) such additional information relating to the Specially Serviced Mortgage
Loans and REO Properties as the Servicer reasonably requests to enable it to
produce the CSSA Data Files and CSSA Surveillance Reports and perform its
responsibilities under this Agreement which is in the Special Servicer's
possession or is reasonably obtainable by the Special Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and REO Properties and shall provide the
Special Servicer with any information in its possession required by the Special
Servicer to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a
Mortgage Loan, the Special Servicer shall deliver to each Rating Agency, the
Servicer and the Directing Certificateholder a report (the "Asset Status
Report") with respect to such Mortgage Loan and the related Mortgaged Property.
Such Asset Status Report shall set forth the following information to the
extent reasonably determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standards, that are applicable to the exercise of
remedies as aforesaid and to the enforcement of any related guaranties
or other collateral for the related Mortgage Loan and whether outside
legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such
Specially Serviced Mortgage Loan might be returned to performing
status and returned to the Servicer for regular servicing or otherwise
realized upon;
(v) the Appraised Value of the Mortgaged Property together
with the assumptions used in the calculation thereof; provided,
however, that in the event that the Servicer has obtained an Appraisal
with respect to the related Mortgaged Property within the 12-month
period immediately prior to the Servicing Transfer Event, the Special
Servicer may use such prior Appraisal in determining the Appraised
Value of the Mortgaged Property; and
103
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standards.
If within 10 Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as
outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law or the
terms of the applicable Mortgage Loan documents. If the Directing
Certificateholder disapproves such Asset Status Report, the Special Servicer
will revise such Asset Status Report and deliver to the Directing
Certificateholder, the Rating Agencies and the Servicer a new Asset Status
Report as soon as practicable, but in no event later than 30 days after such
disapproval. The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(e) until the Directing Certificateholder
shall fail to disapprove such revised Asset Status Report in writing within 10
Business Days of receiving such revised Asset Status Report or until the
Special Servicer makes one of the determinations described below. The Special
Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement such report, provided that such report shall
have been prepared, reviewed and not rejected pursuant to the terms of this
Section; provided, however, that the Special Servicer shall not make any
material modifications to any Asset Status Report without first having obtained
the Directing Certificateholder's approval as provided above in this paragraph.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a 10-Business Day period if the Special Servicer has reasonably
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders and it has made a reasonable
effort to contact the Directing Certificateholder and (ii) in any case, shall
determine whether such affirmative disapproval is not in the best interest of
all the Certificateholders pursuant to the Servicing Standards. Upon making
such determination, the Special Servicer shall notify the Trustee of such
rejection and deliver to the Trustee a proposed notice to Certificateholders
which shall include a copy of the Asset Status Report, and the Trustee shall
send such notice to all Certificateholders. If the majority of such
Certificateholders, as determined by Voting Rights, fail, within 5 days of the
Trustee's sending such notice, to reject such Asset Status Report, the Special
Servicer shall implement the same. If the Asset Status Report is rejected by
the Certificateholders, the Special Servicer shall revise such Asset Status
Report as described above in this Section 3.21(e). The Trustee shall be
entitled to reimbursement from the Trust Fund for the reasonable expenses of
providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report.
The Special Servicer shall not take any action inconsistent with the related
Asset Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder shall (a) require or
cause the Special Servicer to violate the terms of a Specially Serviced
Mortgage Loan, applicable law or any
104
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standards and to maintain the REMIC status of
each of the Lower-Tier REMIC and the Upper-Tier REMIC, or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) expose the Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Seller, the Trust Fund, the Trustee, the Fiscal
Agent or their officers, directors, employees or agents to any claim, suit or
liability, (d) materially expand the scope of the Special Servicer's or the
Servicer's responsibilities under this Agreement or (e) cause or direct the
Special Servicer to act in a manner contrary to the Servicing Standards.
The Directing Certificateholder shall have no liability to
any other Certificateholder for any action taken, or for refraining from the
taking of any action, in its good faith judgment pursuant to this Agreement, or
for any errors in such judgment; provided, however, that the Directing
Certificateholder shall not be protected against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of its
obligations or duties; provided further that the Directing Certificateholder
shall not be deemed to have been negligent or reckless, or to have acted in bad
faith or engaged in willful misconduct solely by reason of its having acted in
the interests of the Controlling Class Certificateholders, and the Directing
Certificateholder shall have no liability whatsoever for having so acted.
Subject to the foregoing, the Directing Certificateholder may act solely in the
interests of the Controlling Class Certificateholders and may take actions that
favor the interests of the Controlling Class Certificateholders over the
interests of the Holders of any other Class or Classes of Certificates.
(f) Upon receiving notice of (i) the filing of a case under any
present or future federal or state bankruptcy, insolvency or similar law or the
commencing of any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings with respect to a Mortgage Loan or the
related Mortgagor or (ii) the request by a Mortgagor for the amendment or
modification of a Mortgage Loan other than an amendment or modification
provided for in the second paragraph in Sections 3.20(a) or 3.08(f), the
Servicer shall immediately give notice thereof, and shall deliver copies of the
related Mortgage File and Credit File to the Special Servicer and shall use its
reasonable best efforts to provide the Special Servicer with all information
relating to the Mortgage Loan and reasonably requested by the Special Servicer
to enable it to negotiate with the related Mortgagor and prepare for any such
proceedings. The Servicer shall use its reasonable best efforts to comply with
the preceding sentence within 5 Business Days of the occurrence of each such
event, and upon receiving such documents and information, the Special Servicer
shall use its reasonable best efforts to cause the related Mortgagor to cure
any default and/or remedy any such event, work out or modify the Mortgage Loan
consistent with the terms of this Agreement, and/or prepare for such
proceedings. Notwithstanding the foregoing, the occurrence of any of the
above-referenced events shall not in and of itself be considered a Servicing
Transfer Event and, unless a Servicing Transfer Event has occurred with respect
to a related Mortgage Loan, the Servicer shall continue to act as Servicer and
administrator of such Mortgage Loan and no fees shall be payable to the Special
Servicer with respect to such Mortgage Loan other than any related
modification, assumption or extension fees provided for herein.
105
SECTION 3.22. Sub-Servicing Agreements.
(a) The Servicer and the Special Servicer may each enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations under Articles III and IV hereof;
provided, however, that the Sub-Servicing Agreement: (i) is consistent with
this Agreement in all material respects and requires the Sub-Servicer to comply
with all of the applicable conditions of this Agreement; (ii) provides that if
the Servicer or the Special Servicer, as applicable, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee shall thereupon assume all
of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Servicer or Special Servicer, as applicable,
under such agreement, or, alternatively, may act in accordance with Section
7.02 hereof under the circumstances described therein (subject to the
assumption requirements of Section 3.22(g) hereof); (iii) provides that the
Trustee for the benefit of the Certificateholders shall be a third party
beneficiary under such Sub-Servicing Agreement, but that (except to the extent
the Trustee or its designee assumes the obligations of the Servicer or Special
Servicer, as applicable, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trust Fund, the Trustee, any successor
Servicer, any successor Special Servicer or any Certificateholder shall have
any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty and (v) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund. Any successor Servicer or Special
Servicer hereunder, as applicable, shall, upon becoming successor Servicer or
Special Servicer, as applicable, be assigned and shall assume any Sub-Servicing
Agreements from the predecessor Servicer or Special Servicer, as applicable
(subject to the assumption requirements of Section 3.22(g) hereof). In
addition, each Sub-Servicing Agreement entered into by the Servicer may provide
that the obligations of the Sub-Servicer thereunder shall terminate with
respect to any Mortgage Loan serviced thereunder at the time such Mortgage Loan
becomes a Specially Serviced Mortgage Loan. Each of the Servicer and the
Special Servicer shall deliver to the Trustee copies of all Sub-Servicing
Agreements entered into by them, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents. References in this Agreement to actions taken or to be taken by the
Servicer or the Special Servicer, as applicable, include actions taken or to be
taken by a Sub-Servicer on behalf of the Servicer or the Special Servicer, as
the case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer retained by the Servicer to satisfy the obligations of the
Servicer hereunder to make Advances shall be deemed to have been advanced by
the Servicer 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 Servicer, and, for so long as they are
outstanding, such Advances shall accrue interest in accordance with Section
3.03(d), such interest to be allocable between the Servicer and such
Sub-Servicer retained by the Servicer pursuant to the terms of the
Sub-Servicing Agreement. For purposes of this Agreement, the Servicer shall be
deemed to have received any payment when a Sub-Servicer retained by it receives
such payment. The Servicer shall notify the Special Servicer, the Trustee and
the Depositor in writing promptly of the appointment by it of any
106
Sub-Servicer. The Special Servicer shall notify the Servicer, the Trustee, the
Depositor and each Rating Agency in writing promptly of the appointment by it
of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Servicer and
the Special Servicer, as applicable, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of each
Sub-Servicer retained by it under the related Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Servicer would require
were it the owner of the Mortgage Loans. Each of the Servicer and the Special
Servicer, as applicable, shall have the right to remove a Sub-Servicer retained
by it in accordance with the terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall 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 reasonable efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement,
each of the Servicer and the Special Servicer represents and warrants that it
shall remain obligated and liable to the Trustee and the Certificateholders for
the performance of its obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if it alone were servicing and administering the
Mortgage Loans for which it is responsible, and the Servicer and the Special
Servicer shall each pay the respective fees of any Sub-Servicer retained by it
thereunder from its own funds. In no event shall the Trust Fund bear any
termination fee required to be paid to any Sub-Servicer as a result of such
Sub-Servicer's termination under any Sub-Servicing Agreement. In addition, the
Servicer and the Special Servicer shall indemnify the Trust Fund against any
loss, damage or liability arising by reason of willful misfeasance, bad faith
or negligence in the performance of duties by any Sub-Servicer appointed by it
or by reason of negligent disregard by such Sub-Servicer of obligations and
duties under this Agreement and such Sub-Servicing Agreement; provided,
however, that the Servicer and the Special Servicer, as applicable, shall not
be required to indemnify any Sub-Servicer that the Servicer or the Special
Servicer, as the case may be, has not itself selected for appointment.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and
107
administrative duties under any Sub-Servicing Agreement; provided, however,
that the Trustee shall not be held liable for any negligence, and shall be
indemnified by the Sub-Servicer, with respect to, or misuse of, any such power
of attorney by a Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the event the
Trustee or any other Person becomes successor Servicer, the Trustee or such
successor Servicer shall have the right to terminate such Sub-Servicing
Agreement without a fee.
(h) Promptly after the execution of any Sub-Servicing Agreement
entered into by the Servicer, the Servicer shall forward a copy of such
Sub-Servicing Agreement to the Trustee, the Special Servicer and the Depositor.
The Special Servicer shall comply with the terms of each such Sub-Servicing
Agreement to the extent the terms thereof are not inconsistent with the terms
of this Agreement and the Special Servicer's obligations hereunder. With
respect to Mortgage Loans subject to a Sub-Servicing Agreement, the Special
Servicer shall, among other things, remit amounts, deliver reports and
information, and afford access to facilities and information to the related
Sub-Servicer that would be required to be remitted, delivered or afforded, as
the case may be, to the Servicer pursuant to the terms hereof within a
sufficient period of time to allow the Sub-Servicer to fulfill its obligations
under such Sub-Servicing Agreement and in no event later than one Business Day
prior to the applicable Determination Date (or such other date as specified
herein).
(i) Promptly after the execution of any Sub-Servicing Agreement
entered into by the Special Servicer, the Special Servicer shall forward a copy
of such Sub-Servicing Agreement to the Trustee and the Servicer. The Servicer
shall comply with the terms of each such Sub-Servicing Agreement to the extent
the terms thereof are not inconsistent with the terms of this Agreement and the
Servicer's obligations hereunder.
SECTION 3.23. Representations and Warranties of the Servicer.
(a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Depositor
and the Special Servicer and the Fiscal Agent, as of the Closing Date, that:
(i) The Servicer is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and the Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Servicer, and the performance and compliance with the terms of this
Agreement by the Servicer, will not violate the Servicer's formation
documents as amended and restated, and by-laws or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, or result
108
in the violation of any law, rule, regulation, order, judgment or
decree to which the Servicer or its property is subject;
(iii) The Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution
and delivery by the Trustee and the Depositor, constitutes a valid,
legal and binding obligation of the Servicer, enforceable against the
Servicer in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand
of any federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Servicer or its
properties or might have consequences that would materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(vi) No litigation is pending or, to the best of the
Servicer's knowledge, threatened against the Servicer which would
prohibit the Servicer from entering into this Agreement or, in the
Servicer's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Servicer to perform its
obligations under this Agreement or the financial condition of the
Servicer;
(vii) The Servicer will examine each Sub-Servicing Agreement
and will be familiar with the terms thereof. Any Sub-Servicing
Agreements will comply with the provisions of Section 3.22;
(viii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Servicer, or compliance by the
Servicer with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot be
obtained prior to the actual performance by the Servicer of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Servicer to
perform its obligations hereunder;
(ix) The Servicer has full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement; and
109
(x) The Servicer warrants that by August 31, 1999, any
custom-made software designed by (or, to the best knowledge of the
Servicer, relying on vendor and manufacturer warranties, purchased or
licensed by) the Servicer and used by the Servicer in the course of
the operation or management of, or the compiling, reporting or
generation of data required by this Agreement, will not contain any
deficiency (x) in the ability of such software or hardware to identify
correctly or perform calculations or other processing tasks with
respect to date fields containing date values after August 31, 1999 or
(y) that would cause such software or hardware, by reason of the
changing of the date from 1999 to 2000, to be fit no longer for the
purpose for which it was intended.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. The Servicer
shall indemnify the Trustee, the Fiscal Agent and the Trust Fund and hold each
of them harmless against any losses, damages, penalties, fines, forfeitures,
and legal fees and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion arising from, or
resulting from a material breach of the Servicer's representations and
warranties contained in paragraph (a) above. Such indemnification shall survive
any termination or resignation of the Servicer, and any termination of the
Agreement.
SECTION 3.24. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor, the Servicer and the Fiscal Agent, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Texas, and the Special Servicer is in compliance with the laws of each
State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms of
this Agreement by the Special Servicer, will not violate the Special
Servicer's charter and by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it
or any of its assets, or result in the violation of any law, rule,
regulation, order, judgment or decree which the Special Servicer or
its property is subject;
(iii) The Special Servicer has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement;
110
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial
condition of the Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or
the financial condition of the Special Servicer;
(vii) Each officer, director or employee of the Special
Servicer that has or, following the occurrence of a Servicing Transfer
Event, would have responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(c). Neither the Special Servicer nor any of its officers,
directors or employees that is or, following the occurrence of a
Servicing Transfer Event, would be involved in the servicing or
administration of Mortgage Loans has been refused such coverage or
insurance;
(viii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Special Servicer, or compliance by the
Special Servicer with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for any consent,
approval, authorization or order which has not been obtained or cannot
be obtained prior to the actual performance by the Special Servicer of
its obligations under this Agreement, and which, if not obtained would
not have a materially adverse effect on the ability of the Special
Servicer to perform its obligations hereunder; and
(ix) The Special Servicer warrants that by August 31, 1999,
any custom-made software or hardware designed (or to the best
knowledge of the Special Servicer, relying on vendor and manufacturer
warranties, purchased or licensed by the Special Servicer)
111
and used by the Special Servicer in the course of the operation or
management of, or the compiling, reporting or generation of data
required by this Agreement will not contain any deficiency (x) in the
ability of such software or hardware to identify correctly or perform
calculations or other processing tasks with respect to dates after
August 31, 1999 or (y) that would cause such software or hardware, by
reason of the changing of the date from 1999 to 2000, to be fit no
longer for the purpose for which it was intended.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. The Special
Servicer shall indemnify the Trustee, the Fiscal Agent and the Trust Fund and
hold them harmless against any losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from a material breach of the Special Servicer's representations and
warranties contained in paragraph (a) above. Such indemnification shall survive
any termination or resignation of the Special Servicer, and any termination of
the Agreement.
SECTION 3.25. Interest Reserve Account.
(a) On each Servicer Remittance Date relating to any Interest Accrual
Period ending in any January and on any Servicer Remittance Date relating to
any Interest Accrual Period ending in any December of a year immediately
preceding a leap year, in respect of the Interest Reserve Loans, the Servicer
shall deposit into the Interest Reserve Account an amount equal to one day's
interest on the Stated Principal Balance of the Interest Reserve Loans as of
the Due Date occurring in the month preceding the month in which such Servicer
Remittance Date occurs at the related Mortgage Rate), to the extent a full
Monthly Payment or P&I Advance is made in respect thereof (all amounts so
deposited in any consecutive February and January, "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the Servicer
shall withdraw from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January, if any, and February, if any, and
shall remit such amount into the Lower-Tier Distribution Account.
[End of Section III]
112
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Servicer Remittance Date, to the extent of the Available
Distribution Amount for such Distribution Date withdrawn from the Certificate
Account pursuant to Section 3.04(c), the Servicer shall transfer to the
Lower-Tier Distribution Account, and on each Distribution Date the Trustee
shall transfer the Lower-Tier Distribution Amount from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account in the amounts and
priorities set forth in Section 4.01(b) with respect to each class of
Uncertificated Lower-Tier Interests, and immediately thereafter, shall make
distributions thereof from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible,
each priority before making any distribution with respect to any succeeding
priority:
(i) first, to the Holders of the Class A-1 Certificates, the
Class A-2 Certificates and the Class X Certificates, pro rata (based
upon their respective entitlements to interest for such Distribution
Date), in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Classes of
Certificates for such Distribution Date;
(ii) second, (A) to the Holders of the Class A-1
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount, until the
outstanding Certificate Balance of such Class has been reduced to zero
and (B) after the Certificate Balance of the Class A-1 Certificates
has been reduced to zero, to the Holders of the Class A-2
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A-1
Certificates on such Distribution Date), until the outstanding
Certificate Balance of such Class has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates and
the Class A-2 Certificates, pro rata (based upon the aggregate
unreimbursed Collateral Support Deficit allocated to each such Class),
until all amounts of Collateral Support Deficit previously allocated
to such Classes, but not previously reimbursed, have been reimbursed
in full;
(iv) fourth, to the Holders of the Class B Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(v) fifth, after the Certificate Balances of the Class A-1
and Class A-2 Certificates have been reduced to zero, to the Holders
of the Class B Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the
Class
113
A Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class B Certificates has been reduced to
zero;
(vi) sixth, to the Holders of the Class B Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class B Certificates, but not previously reimbursed, have been
reimbursed in full;
(vii) seventh, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class
A-1, Class A-2 and Class B Certificates have been reduced to zero, to
the Holders of the Class C Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A and Class B Certificates on
such Distribution Date), until the outstanding Certificate Balance of
the Class C Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class C Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class C Certificates, but not previously reimbursed, have been
reimbursed in full;
(x) tenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xi) eleventh, after the Certificate Balances of the Class
A-1, Class A-2, Class B and Class C Certificates have been reduced to
zero, to the Holders of the Class D Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B and Class C
Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class D Certificates has been reduced to
zero;
(xii) twelfth, to the Holders of the Class D Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class D Certificates, but not previously reimbursed, have been
reimbursed in full;
(xiii) thirteenth, to the Holders of the Class E
Certificates, in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C and Class D Certificates have been
reduced to zero, to the Holders of the Class E Certificates, in
reduction of the Certificate Balance thereof, an amount equal
114
to the Principal Distribution Amount (or the portion thereof remaining
after any distributions in respect of the Class A, Class B, Class C
and Class D Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class E Certificates has been
reduced to zero;
(xv) fifteenth, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xvi) sixteenth, to the Holders of the Class F Certificates,
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of Certificates
for such Distribution Date;
(xvii) seventeenth, after the Certificate 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 the Holders of the Class F
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A,
Class B. Class C, Class D and Class E Certificates on such
Distribution Date), until the outstanding Certificate Balance of the
Class F Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class F
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class F Certificates, but not previously
reimbursed, have been reimbursed in full;
(xix) nineteenth, to the Holders of the Class G Certificates
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of Certificates
for such Distribution Date;
(xx) twentieth, after the Certificate 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 the Holders of the Class G
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A,
Class B, Class C, Class D, Class E and Class F Certificates on such
Distribution Date), until the outstanding Certificate Balance of the
Class G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class G
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class G Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxii) twenty-second, to the Holders of the Class H
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
115
(xxiii) twenty-third, after the Certificate 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 the Holders of the
Class H Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates
on such Distribution Date), until the outstanding Certificate Balance
of the Class H Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class H Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class I
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxvi) twenty-sixth, after the Certificate 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 the
Holders of the Class I Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount
(or the portion thereof remaining after any distributions in respect
of the Class A, Class B, Class C, Class D, Class E, Class E, Class G
and Class H Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class I Certificates has been
reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class I
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class I Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class J
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class I Certificates have been reduced to zero,
to the Holders of the Class J Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H and Class I Certificates on such
Distribution Date), until the outstanding Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
116
(xxxi) thirty-first, to the Holders of the Class K
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class I and Class J Certificates have been reduced
to zero, to the Holders of the Class K Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I and Class J Certificates
on such Distribution Date), until the outstanding Certificate Balance
of the Class K Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class K
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class K Certificates, but not previously
reimbursed, have been reimbursed in full; and
(xxxiv) thirty-fourth, to the Holders of the Class R
Certificates, the amount, if any, of the Available Distribution Amount
remaining in the Upper-Tier Distribution Account with respect to such
Distribution Date.
(b) On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions in respect of principal or reimbursement of
Collateral Support Deficit in an amount equal to the amount of principal or
reimbursement of Collateral Support Deficit actually distributable to its
respective Related Certificates as provided in Sections 4.01(a) and (c).
On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions of interest as follows:
(A) the Class LA-1 Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class A-1
Certificates and (ii) an amount equal to the product of the Class LA-1
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(B) the Class LA-2 Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class A-2
Certificates and (ii) an amount equal to the product of the Class LA-2
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(C) the Class LB Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class B
Certificates and (ii) an amount equal to the product of the Class LB
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
117
(D) the Class LC Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class C
Certificates and (ii) an amount equal to the product of the Class LC
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(E) the Class LD Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class D
Certificates and (ii) an amount equal to the product of the Class LD
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(F) the Class LE Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class E
Certificates and (ii) an amount equal to the product of the Class LE
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(G) the Class LF Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class F
Certificates and (ii) an amount equal to the product of the Class LF
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(H) the Class LG Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class G
Certificates and (ii) an amount equal to the product of the Class LG
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(H) the Class LH Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class H
Certificates and (ii) an amount equal to the product of the Class LH
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(H) the Class LI Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class I
Certificates and (ii) an amount equal to the product of the Class LI
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(H) the Class LJ Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class J
Certificates and (ii) an amount equal to the product of the Class LJ
Interest Fraction and the amount of interest distributable on the
Class X Certificates;
(i) the Class LK Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class K
Certificates and (ii) an amount equal to the product of the Class LK
Interest Fraction and the amount of interest distributable on the
Class X Certificates.
118
Such amounts distributed to the Uncertificated Lower-Tier Interests in respect
of principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount," and shall be made
by the Trustee by depositing such Lower-Tier Distribution Amount in the
Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto. The initial principal balance of each Uncertificated
Lower-Tier Interest equals the respective Original Lower-Tier Principal Amount.
The pass-through rate with respect to each Uncertificated Lower-Tier Interest
will be the rate per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on each
Distribution Date after distribution of the Lower-Tier Distribution Amount
shall be distributed to the Holders of the Class LR Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) On and after the Distribution Date on which the Certificate
Balances of the Subordinate Certificates have all been reduced to zero (without
regard to any amounts of Collateral Support Deficit remaining unreimbursed),
the Principal Distribution Amount will be distributed, pro rata (based upon
Certificate Balances), among the Class A Certificates without regard to the
priorities set forth in Section 4.01(a)(ii).
(d) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Yield
Maintenance Charges actually collected on the Mortgage Loans or any REO Loans
during the related Due Period and shall distribute such amount in respect of
the Class LA-1 Uncertificated Interest by depositing such amount in the
Upper-Tier Distribution Account (notwithstanding that all principal and
interest distributable with respect to the Class LA-1 Uncertificated Interest
has been paid in full).
(e) On each Distribution Date, until the Certificate Balances of the
Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates have
each been reduced to zero, the Trustee shall withdraw any amounts on deposit in
the Upper-Tier Distribution Account that represent Yield Maintenance Charges
actually collected on Mortgage Loans or REO Loans during the related Due Period
and remitted in respect of the Class LA-1 Uncertificated Interest pursuant to
Section 4.01(d), and shall distribute to each of the Class A, Class B, Class C,
Class D and Class E Certificates, for each such Class an amount equal to the
product of (a) a fraction, the numerator of which is the amount of principal
distributed with respect to such Class pursuant to Section 4.01(a) on such
Distribution Date, and the denominator of which is the total amount of
principal distributed to all Classes of Certificates pursuant to Section
4.01(a) on such Distribution Date, (b) the Base Interest Fraction for the
related principal prepayment and such Class of Certificates and (c) the
aggregate amount of Yield Maintenance Charges collected on such principal
prepayment during the related Due Period. Any Yield Maintenance Charges
received during the related Due Period with respect to such Mortgage Loans and
remitted in respect of the Class LA-1 Uncertificated Interest pursuant to
Section 4.01(d) remaining after such distributions shall be distributed on the
Class X Certificates.
119
Notwithstanding anything to the contrary in this Agreement, on each
Distribution Date on and after the Senior Principal Distribution Cross-Over
Date, and in any event on the final Distribution Date in connection with the
termination of the Trust Fund, distributions of principal on the Class A-1
Certificates and the Class A-2 Certificates will be paid to holders of such two
Classes of Certificates, pro rata in accordance with their respective
Certificate Balances outstanding immediately prior to such Distribution Date,
until the Certificate Balance of each such Class of Certificates is reduced to
zero.
Following the reduction of the Certificate Balances of the Class A-1,
Class A-2, Class B, Class C, Class D and Class E Certificates to zero, the
Trustee shall distribute 100% of any Yield Maintenance Charges actually
received during the related Due Period with respect to such Mortgage Loans and
remitted in respect of the Class LA-1 Uncertificated Interest pursuant to
Section 4.01(d), to the Class X Certificates.
(f) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise specifically provided in Sections 4.01(g), 4.01(h) and
9.01, all such distributions with respect to each Class on each Distribution
Date shall be made to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than 5 Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like Manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of
its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer, the Underwriter, the Placement Agent or the Fiscal Agent shall have
any responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any amount
of Collateral Support Deficit previously allocated
120
to such Class of Certificates) will be made on the next Distribution
Date, the Trustee shall, no later than the related P&I Advance
Determination Date, mail to each Holder on such date of such Class of
Certificates a notice to the effect that:
(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 offices of the Certificate Registrar 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
non-tendering Holder or Holders. If any Certificates as to which notice has
been given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
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 or the Paying Agent as a result
of such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective Class
otherwise entitled to distributions of interest and principal on such Class on
the relevant Distribution Date; provided that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall
be made in accordance with Section 11.05 at such last address. The amount of
the distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(g) as if such Holder had failed to
surrender its Certificates.
121
SECTION 4.02. Statements to Certificateholders; CSSA Standard
Information Package.
(a) On each Distribution Date, the Trustee shall forward by mail to
all of the Holders of each Class of Certificates, the Underwriter, the
Placement Agent, the Servicer, the Special Servicer and certain financial
market publishers (which initially shall be Bloomberg, L.P., the ▇▇▇▇▇ Group
and Charter Research Corporation) a statement (substantially in the form set
forth as Exhibit H hereto) as to the distributions made on such Distribution
Date (each, a "Distribution Date Statement") setting forth:
(i) the amount of distributions, if any, made on
such Distribution Date to the holders of each Class of
Certificates in reduction of the Certificate Balance thereof;
(ii) the amount of distributions, if any, made on
such Distribution Date to the holders of such Class of
Certificates allocable to (A) Distributable Certificate
Interest and/or (B) Yield Maintenance Charges;
(iii) the number and the aggregate unpaid principal
balance of the Mortgage Loans at the close of business on the
related Determination Date;
(iv) the number and the aggregate unpaid principal
balance of the Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent 90 days or more, (D)
that are Specially Serviced Mortgage Loans that are not
delinquent or (E) as to which foreclosure proceedings have
been commenced.
(v) with respect to any Mortgage Loans as to which
the related Mortgaged Property became an REO Property during
the preceding Due Period, the Stated Principal Balance and
the unpaid principal balance of such Mortgage Loan as of the
date on which such Mortgaged Property became an REO Property;
(vi) as to any Mortgage Loan repurchased by the
Mortgage Loan Seller or otherwise liquidated or disposed of
during the related Due Period, the loan number thereof and
the amount of proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any, received
thereon during the related Due Period and the portion thereof
included in the Available Distribution Amount for such
Distribution Date;
(vii) with respect to any REO Property included in
the Trust Fund as of the end of the related Due Period, the
value of such REO Property based on the most recent Appraisal
or valuation and the amount of any other income collected
with respect to any REO Property net of related expenses and
other amounts, if any, received on such REO Property during
the related Due Period;
122
(viii) with respect to any REO Property sold or
otherwise disposed of during the related Due Period, (A) the
loan number of the related Mortgage Loan and the amount of
sale proceeds and other amounts, if any, received in respect
of such REO Property during the related Due Period and the
portion thereof included in the Available Distribution Amount
and (B) the date of the related determination by the Special
Servicer that it has recovered all payments which it expects
to be fully recoverable;
(ix) the aggregate Certificate Balance of each Class
of Certificates before and after giving effect to the
distributions made on such Distribution Date, separately
identifying any reduction in the aggregate Certificate
Balance of each such Class due to Collateral Support Deficits
and any increase in the aggregate Certificate Balance due to
allocation of Certificate Deferred Interest;
(x) the aggregate amount of Unscheduled Principal
Distribution Amount received during the related Due Period;
(xi) the Pass-Through Rate for such Class of
Certificates for such Distribution Date;
(xii) the aggregate amount of the Servicing Fee,
Special Servicing Fee, Workout Fee, Liquidation Fee and any
other servicing or special servicing compensation retained by
or paid to the Servicer or the Special Servicer for the
related Due Period.
(xiii) the amount of Collateral Support Deficits, if
any, incurred with respect to the Mortgage Loans during the
related Due Period and in the aggregate for all prior Due
Periods (except to the extent reimbursed or paid);
(xiv) the aggregate amount of Servicing Advances and
P&I Advances outstanding which have been made by the
Servicer, the Trustee and the Fiscal Agent; and
(xv) the amount of any Appraisal Reduction allocable
to the related Due Period on a loan-by-loan basis and the
total Appraisal Reduction Amount as of such Distribution
Date.
In the case of information furnished pursuant to clauses (i), (ii), and (ix)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per Definitive Certificate.
On each Distribution Date, the Trustee shall forward by mail to all of
the Holders of each Class of Certificates, the Underwriter, the Placement
Agent, the Servicer, the Special Servicer and certain financial market
publishers identified to the Trustee from time to time (which initially shall
be Bloomberg, L.P., the ▇▇▇▇▇ Group and Charter Research Corporation) a report
123
in tabular form (the "Collateral Tabulation Report") containing information
regarding the Mortgage Loans as of the end of the related Due Period setting
forth substantially the categories of information regarding the Mortgage Loans
set forth in the charts and tables contained in the Prospectus (calculated,
where applicable, on the basis of the most recent relevant information provided
by the borrowers to the Servicer or the Special Servicer and by the Servicer or
the Special Servicer, as the case may be, to the Trustee).
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 Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, 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.
On each Distribution Date, the Trustee shall forward to the Depositor,
to each Rating Agency, to each Holder of a Residual Certificate, to the
Servicer, to the Special Servicer, to the Trustee, to the Fiscal Agent, to an
agent designated by the Directing Certificateholder (which agent shall
initially be the Trepp Group, with an address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10022) and to any other party that the Depositor may
designate, a copy of the Distribution Date Statement forwarded to the Holders
of the Regular Certificates on such Distribution Date.
(b) With respect to each Distribution Date commencing on the
Distribution Date occurring in August 1998, the Servicer shall furnish to the
Trustee, the Depositor and each Rating Agency an accurate and complete CSSA
Standard Information Package no later than 4:00 p.m. Dallas time on the
Business Day prior to the related P&I Advance Determination Date. The CSSA
Standard Information Package shall be provided by the Servicer to the Trustee
in such formats as the Servicer and the Trustee may agree. The Servicer may
make available the CSSA Standard Information Package on its internet site,
which is located at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇.
The Trustee shall have no obligation to recompute, verify or
recalculate the information provided thereto by the Servicer in the CSSA
Standard Information Package. Unless the Trustee has actual knowledge that any
CSSA Standard Information Package contains erroneous information, the Trustee
is authorized to rely thereon in calculating and making distributions to
Certificateholders in accordance with Section 4.01, preparing the statements to
Certificateholders required by Section 4.02(a) and allocating Collateral
Support Deficit to the Certificates in accordance with Section 4.04.
No later than 11:00 a.m. Dallas time on each Servicer Remittance Date
the Servicer shall provide to the Trustee in electronic or other acceptable
format a report in the form of Exhibit J.
124
(c) As soon as reasonably practicable, upon the written request of any
Certificateholder, the Trustee shall provide the requesting Certificateholder
with such information that is in the Trustee's possession or can reasonably be
obtained by the Trustee as is requested by such Certificateholder, for purposes
of satisfying applicable reporting requirements under Rule 144A under the
Securities Act. In addition, pursuant to Section 8.12(b), the Servicer shall
provide a financial market publisher (which shall initially be Bloomberg, L.P.
and the ▇▇▇▇▇ Group) certain current information with respect to the Mortgaged
Properties set forth in the CSSA Standard Information Packages. If any such
information is provided on or before August, 1998, the Servicer shall request
that the Depositor provide the Prospectus to Bloomberg.
(d) The Trustee shall make available to Persons who have obtained an
account number on the Trustee's ASAP (Automatic Statements Accessed by Phone)
System (or similar system), the reports described above in this Section 4.02
and a summary report of Certificate Factors via automated facsimile. The
Trustee shall make available, upon request, to Certificateholders, Certificate
Owners identified to the reasonable satisfaction of the Trustee, the Depositor,
the Initial Purchaser, the Servicer, the Special Servicer and the Rating
Agencies account numbers on the Trustee's ASAP System (or a similar system). In
addition, if the Depositor so directs the Trustee and on terms acceptable to
the Trustee, the Trustee will make available through its electronic bulletin
board system, on a confidential basis, such information related to the Mortgage
Loans as the Depositor may reasonably request. A directory has been set upon on
the bulletin board in which an electronic file is stored containing monthly
servicer data. All files shall be password protected. Passwords to each file
will be released by the Trustee, upon request, to Certificateholders,
Certificate Owners identified to the reasonable satisfaction of the Trustee,
the Depositor, the Initial Purchaser, the Master Servicer, the Special Servicer
and the Rating Agencies. The Trustee also maintains a site on the internet at
▇▇▇.▇▇▇▇▇▇.▇▇▇ at which certain of the above information will be available.
(e) The Servicer and the Trustee shall prepare and the Trustee shall
sign and file, on behalf of the Depositor, any and all Exchange Act Reports;
provided, however, that the Depositor shall prepare, sign and file with the
Commission the initial Form 8-K relating to the Trust Fund. Each Exchange Act
Report consisting of a monthly Distribution Date Statement, Comparative
Financial Status Report, Delinquent Loan Status Report, Historical Loss
Estimate Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis, Operating Statement Analysis Worksheet, Watch
List or report pursuant to Section 4.02(a) shall be prepared as an exhibit or
exhibits to a Form 8-K. Each Exchange Act Report consisting of an Annual Report
filed on Form 10-K shall identify the aggregate number of Holders of Public
Certificates and direct participants of the Depository holding positions in
Public Certificates as of December 31 (or the nearest Business Day is such date
is not a Business Day) of the related year based on information provided by the
Trustee. The Trustee shall provide the Servicer and the Special Servicer with a
list of Certificateholders and direct participants of the Depository holding
Public Certificates as of December 31 of the related year no later than two
Business Days prior to the date on which the Servicer is required to deliver
the related Exchange Act Report to the Trustee. For each Exchange Act Report,
the Servicer or the Special Servicer, as applicable, shall prepare (i) a
manually-signed paper version of such report and (ii) an electronic version of
such report, which version shall be prepared as a Microsoft "Word for Windows"
file
125
(or in such other format as the Trustee, the Depositor and the Servicer or the
Special Servicer may agree), that is suitable for filing via ▇▇▇▇▇. Exchange
Act Reports consisting of (i) a monthly Distribution Date Statement, a
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis, Operating Statement Analysis Worksheet, Watch
List, or other report pursuant to Section 4.02 shall be filed within ten days
after each Distribution Date; and (ii) an Annual Report on Form 10-K shall be
filed on or prior to March 15 of each calendar year. Manually-signed copies of
each Exchange Act Report shall be delivered to the Trustee.
All reports and notices to be filed by the Trustee, other than the
monthly Distribution Date Statements, shall be delivered by the Servicer to the
Trustee no later than 8 days after each Distribution Date, and shall be in an
80 column text format suitable for ▇▇▇▇▇ filing, or in such other format that
is acceptable to the Trustee from time to time.
If information for any Exchange Act Report is incomplete by the date
on which such report is required to be filed under the Exchange Act, the
Trustee shall prepare and execute a Form 12b-25 under the Exchange Act. The
Trustee shall file the related report in electronic form when such information
is available.
If the requirements of Section 15(d) of the Exchange Act have not been
met, the Trustee shall suspend filing reports with the Commission as of fiscal
year 1999 and shall file Form 15 with the Commission no later than January 30,
1999.
The Trustee shall solicit any and all proxies of the
Certificateholders whenever such proxies are required to be solicited pursuant
to the Exchange Act.
(f) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
be executed, to the extent the Servicer deems such action to be necessary or
appropriate, to provide that such information shall be used solely for purposes
of evaluating the investment characteristics of the Certificates and shall be
used in accordance with applicable law governing securities), also make
available any additional information relating to the Mortgage Loans, the
Mortgaged Properties or the Mortgagors, for review by the Depositor, the
Underwriter, Rating Agencies and any other Persons to whom the Servicer
believes such disclosure is appropriate, in each case except to the extent
doing so is prohibited by applicable law or by any related Loan Documents
related to a Mortgage Loan.
(g) The Servicer and the Special Servicer shall make available at its
offices during normal business hours, or send to the requesting party at the
expense of each such requesting party (other than the Rating Agencies and the
Depositor) for review by the Depositor, the Trustee, the Rating Agencies, the
Underwriter and any other Persons to whom the Servicer or the Special
126
Servicer, as applicable, believes such disclosure to be appropriate the
following items: (i) all financial statements, occupancy information, rent
rolls, retail sales information, average daily room rates and similar
information received by the Servicer or the Special Servicer, as applicable,
from each Borrower, (ii) the inspection reports prepared by or on behalf of the
Servicer or the Special Servicer, as applicable, in connection with the
property inspections pursuant to Section 3.12, (iii) any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Servicer or the Special Servicer, as applicable and (iv) any and all officer's
certificates and other evidence delivered to the Trustee and the Depositor to
support the Servicer's determination that any Advance was, or if made would be,
a Nonrecoverable Advance. Copies of any and all of the foregoing items shall be
available, to the extent in their possession, from the Servicer or the Special
Servicer, as applicable, or the Trustee, as applicable, upon request.
(h) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 4.02, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(i) Notwithstanding any provisions in this Agreement to the contrary,
the Trustee shall not be required to review the content of any Exchange Act
Report for compliance with applicable securities laws or regulations,
completeness, accuracy or otherwise, and the Trustee shall have no liability
with respect to any Exchange Act Report filed with the Commission or delivered
to Certificateholders. None of the Servicer, the Special Servicer and the
Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee, and each
of their respective directors, officers, employees and agents shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to any statement
or omission or alleged statement or omission therein. None of the Trustee, the
Special Servicer and the Servicer shall have any responsibility or liability
with respect to any Exchange Act Report filed by or on behalf of the Depositor,
and each of the Servicer, the Special Servicer and the Trustee shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to any statement
or omission or alleged statement or omission therein provided, however, that
the Servicer and the Special Servicer may not be so indemnified for any loss,
liabilities, damages or expenses caused by its willful misconduct, bad faith or
negligence.
(j) The Trustee represents that it is currently modifying its systems
with the intention of being Year 2000 ready by August 1999.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., Dallas time, on each Servicer Remittance
Date, the Servicer shall either (i) deposit into the Lower-Tier 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 Certificate 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)
127
aggregating the total amount of P&I Advances to be made. Any
amounts held in the Certificate Account for future distribution and so used to
make P&I Advances shall be appropriately reflected in the Servicer's records
and replaced by the Servicer by deposit in the Certificate Account on or before
the next succeeding P&I Advance Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and/or interest in respect of which such P&I Advances were made). The
Servicer shall notify the Trustee and the Fiscal Agent by (i) a certificate of
the Servicing Officer of the amount of any Nonrecoverable P&I Advances for such
Distribution Date, and (ii) the aggregate amount of P&I Advances for a
Distribution Date on or before the P&I Advance Determination Date. If the
Servicer fails to make a required P&I Advance by 11:00 p.m., Dallas time, on
any Servicer Remittance Date, an Event of Default as set forth in clause (a)(i)
of Section 7.01 shall occur and the Trustee shall make such P&I Advance
pursuant to Section 7.05, and if the Trustee fails to make such P&I Advance by
11:00 a.m., Dallas time, on such Servicer Remittance Date, the Fiscal Agent
shall make such P&I Advance pursuant to Section 7.05 by the close of business,
Dallas time, on the Distribution Date. In the event that the Servicer fails to
make a required P&I Advance hereunder, the Paying Agent shall notify the
Trustee and the Fiscal Agent of such circumstances by 3:00 p.m. Dallas time on
the related Servicer Remittance Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount of
P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Servicing Fees) other than Balloon Payments, that were due during the
related Due Period and delinquent as of the close of business on the Business
Day preceding the related Servicer Remittance Date (or not advanced by any
Sub-Servicer on behalf of the Servicer) and (ii) with respect to each Mortgage
Loan as to which the related Balloon Payment was due during or prior to the
related Due Period and was delinquent as of the end of the related Due Period
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the Assumed Scheduled Payment therefor. Subject to
subsection (c) below, the obligation of the Servicer to make such P&I Advances
is mandatory, and with respect to any Mortgage Loan or REO Loan, shall continue
until the Distribution Date on which the proceeds, if any, received in
connection with a Liquidation Event with respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Servicer shall be entitled
to pay itself, the Trustee or the Fiscal Agent and as the case may be (in
reverse of such order with respect to any Mortgage Loan), out of any amounts
then on deposit in the Certificate Account, interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of such P&I Advance from the
date made to but not including the date of reimbursement. The Servicer shall
reimburse itself, the Trustee or the Fiscal Agent, as the case may be, for any
outstanding P&I Advance as soon as practicably possible after funds available
for such purpose are deposited in the Certificate Account.
128
(e) Notwithstanding the foregoing, (i) none of the Servicer, the
Trustee and the Fiscal Agent shall be required to make an Advance for Excess
Interest or Yield Maintenance Charges and (ii) the amount required to be
advanced in respect of delinquent Monthly Payments or Assumed Scheduled
Payments on Mortgage Loans that have been subject to an Appraisal Reduction
Event will equal, with respect to any Distribution Date and any Mortgage Loan,
the amount that would be required to be advanced by the Servicer without giving
effect to the Appraisal Reduction less any Appraisal Reduction Amount with
respect to such Mortgage Loan for such Distribution Date.
SECTION 4.04. Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the distributions
to be made on such date pursuant to Section 4.01 and the allocation of
Certificate Deferred Interest pursuant to Section 4.06, the Trustee or the
Paying Agent shall calculate the amount, if any, by which (i) the aggregate
Stated Principal Balance of the Mortgage Loans and any REO Loans expected to be
outstanding immediately following such Distribution Date, is less than (ii) the
then aggregate Certificate Balance of the Regular Certificates after giving
effect to distributions of principal on such Distribution Date and the
allocation of Certificate Deferred Interest pursuant to Section 4.06 (any such
deficit, the "Collateral Support Deficit"). Any allocation of Collateral
Support Deficit to a Class of Regular Certificates shall be made by reducing
the Certificate Balance thereof by the amount so allocated. Any Collateral
Support Deficit allocated to a Class of Regular Certificates shall be allocated
among the respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. The allocation of Collateral Support Deficit shall
constitute an allocation of losses and other shortfalls experienced by the
Trust Fund. Reimbursement of previously allocated Collateral Support Deficit
will not constitute distributions of principal for any purpose and will not
result in an additional reduction in the Certificate Balance of the Class of
Certificates in respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the Regular
Certificates will be reduced without distribution as a write-off to the extent
of any Collateral Support Deficit, if any, allocable to such Certificates with
respect to such Distribution Date. Any such write-off shall be allocated among
the respective Certificates as follows: first, to the Class K Certificates;
second to the Class J Certificates; third, to the Class I Certificates; fourth,
to the Class H Certificates; fifth, to the Class G Certificates; sixth, to the
Class F Certificates; seventh, to the Class E Certificates; eighth, to the
Class D Certificates; ninth, to the Class C Certificates; tenth, to the Class B
Certificates, in each case, until the remaining Certificate Balance of each
such Class of Certificates has been reduced to zero and tenth, to the Class A-1
Certificates and the Class A-2 Certificates, pro rata (based upon Certificate
Balance), until the remaining Certificate Balances of such Classes of
Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off.
129
SECTION 4.05. Appraisal Reductions.
The aggregate Appraisal Reduction will be allocated by the Trustee on
each Distribution Date, only for purposes of determining the identity of the
Controlling Class and Voting Rights and the amount of P&I Advances with respect
to the related Mortgage Loan, to the Certificate Balance of the Class K, Class
J, Class I, Class H, Class G, Class F, Class E, Class D, Class C and Class B
Certificates, in that order, up to the amount of their respective Certificate
Balances. On any Distribution Date, an Appraisal Reduction that otherwise would
be allocated to a Class of Certificates will be allocated to the next most
subordinate Class to the extent that the Certificate Balance for such Class of
Certificates (prior to taking the Reduction into account) is less than the
Appraisal Reduction Amount.
SECTION 4.06. Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable to
a Class of Certificates (other than the Class X Certificates) shall be reduced
by an amount equal to the amount of Mortgage Deferred Interest for all Mortgage
Loans for the Due Dates occurring in the related Due Period allocated to such
Class of Certificates, such Mortgage Deferred Interest to be allocated first to
the Class K Certificates, second to the Class J Certificates, third to the
Class I Certificates, fourth to the Class H Certificates, fifth to the Class G
Certificates, sixth to the Class F Certificates, seventh to the Class E
Certificates, eighth to the Class D Certificates; ninth to the Class C
Certificates, tenth, to the Class B Certificates, and eleventh, pro rata (based
upon Accrued Certificate Interest), to the Class A-1 and Class A-2
Certificates, in each case up to the respective Accrued Certificate Interest
for each such Class of Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class I, Class J and Class K Certificates shall be increased by the amount of
the Certificate Deferred Interest allocated to such Class of Certificates on
such Distribution Date pursuant to Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the
amount of interest distributable to the Related Uncertificated Lower-Tier
Interest with respect thereto. On each Distribution Date, to the extent
provided in Section 4.06(b), Certificate Deferred Interest will be added to the
Lower-Tier Principal Amount of the Uncertificated Lower-Tier Interests in the
same manner as the interest thereon was reduced pursuant to the preceding
sentence.
[End of Article IV]
130
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 through and including A-14. The Certificates
will be issuable in registered form only; provided, however, that in accordance
with Section 5.03 beneficial ownership interests in the Class A, Class B, Class
C, Class D, Class E and Class X Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Class R
and Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such
applicable legends as are set forth in the Exhibits hereto corresponding to
such Class. Each Certificate will share ratably in all rights of the related
Class. The Class X Certificates will be issuable only in minimum Denominations
of authorized initial Notional Amount of not less than $1,000,000 and in
integral multiples of $1,000 in excess thereof. The Offered Certificates (other
than the Class X Certificates) will be issuable only in minimum Denominations
of authorized initial Certificate Balance of not less than $25,000, and in
integral multiples of $1,000 in excess thereof. The Non-Registered Certificates
(other than the Residual Certificates) will be issuable in minimum
Denominations of authorized initial Certificate Balance of not less than
$250,000, and in integral multiples of $1,000 in excess thereof. If the
Original Certificate Balance or initial Notional Amount, as applicable, of any
Class does not equal an integral multiple of $1,000, then a single additional
Certificate of such Class may be issued in a minimum denomination of authorized
initial Certificate Balance or initial Notional Amount, as applicable, that
includes the excess of (i) the Original Certificate Balance or initial Notional
Amount, as applicable, of such Class over (ii) the largest integral multiple of
$1,000 that does not exceed such amount. The Class R and Class LR Certificates
will be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 25%. With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (a) set forth on the face thereof or, (b) set
forth on a schedule attached thereto or (c) in the case of any beneficial
interest in a Book-Entry Certificate, the interest of the related Certificate
Owner in the applicable Class of Certificates as reflected on the books and
records of the Depository or related Participants, as applicable, (ii)
expressed in terms of initial Certificate Balance or initial Notional Amount,
as applicable, and (iii) be in an authorized denomination, as set forth above.
The Book-Entry Certificates will be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and
Certificate Owners will hold interests in the Book-Entry Certificates through
the book-entry facilities of the Depository in the minimum Denominations and
aggregate Denominations as set forth in the above. No Certificate Owner of a
Book-Entry Certificate of any Class thereof will be entitled to receive a
Definitive Certificate representing its interest in such Class, except as
provided in Section 5.03 herein. Unless and until Definitive Certificates are
issued in respect of a Class of Book-Entry Certificates, beneficial ownership
interests in such Class of Certificates will be maintained and transferred on
the book-entry records of the
131
Depository and Depository Participants, and all references to actions by
Holders of such Class of Certificates will refer to action taken by the
Depository upon instructions received from the related registered Holders of
Certificates through the Depository Participants in accordance with the
Depository's procedures and, except as otherwise set forth herein, all
references herein to payments, notices, reports and statements to Holders of
such Class of Certificates will refer to payments, notices, reports and
statements to the Depository or its nominee as the registered Holder thereof,
for distribution to the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized officers of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
LaSalle National Bank, is hereby initially appointed Authenticating Agent with
power to act on the Trustee's behalf in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
the Authenticating Agent resigns or is terminated, the Trustee shall appoint a
successor Authenticating Agent which may be the Trustee or an Affiliate
thereof.
(c) Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
LaSalle National Bank is hereby initially appointed Certificate Registrar for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided. The Certificate Registrar may appoint, by a
written instrument delivered to the Depositor, the Trustee, the Fiscal Agent,
the Special Servicer and the Servicer, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor Certificate
132
Registrar may prescribe; provided, however, that the predecessor Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment. If the Certificate registrar resigns
as Certificate Registrar, the Trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Trustee, the
Fiscal Agent, the Paying Agent, the Servicer and the Special Servicer shall
have the right to inspect the Certificate Register or to obtain a copy thereof
at all reasonable times, and to rely conclusively upon a certificate of the
Certificate Registrar as to the information set forth in the Certificate
Register. The names and addresses of all Certificateholders and the names and
addresses of the transferees of any Certificates shall be registered in the
Certificate Register; provided, however, in no event shall the Certificate
Registrar be required to maintain in the Certificate Register the names of
Certificate Owners. The Person in whose name any Certificate is so registered
shall be deemed and treated as the sole owner and Holder thereof for all
purposes of this Agreement and the Certificate Registrar, the Servicer, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer and any agent
of any of them shall not be affected by any notice or knowledge to the
contrary. A Definitive Certificate is transferable or exchangeable only upon
the surrender of such Certificate to the Certificate Registrar at its office
maintained at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ or at the Corporate Trust Office, if the Trustee is the Certificate
Registrar (the "Registrar Office") together with an assignment and transfer
(executed by the Holder or his duly authorized attorney). Subject to the
requirements of Sections 5.02(b), (c) and (d), the Certificate Registrar shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
Denominations of a like aggregate Denomination as the Definitive Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e). Each Certificate surrendered for
registration of transfer shall be cancelled, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(b) No transfer of any Class X Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of Non-Registered Securities
(other than the Class X Certificates and other than a transfer by the Depositor
to an Affiliate thereof) is to be made in reliance upon an exemption from the
Securities Act, and under applicable state securities laws, the Certificate
Registrar shall require (in the case of a Definitive Certificate) that the
transferee deliver to the Certificate Registrar an investment representation
letter (the "Investment Representation Letter") substantially in the form of
Exhibit C attached hereto, which Investment Representation Letter shall
certify, among other things, that (subject to the first proviso to this
sentence) the transferee is an institutional "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act or
an entity all of the equity owners of which come within such paragraphs (an
"Institutional Accredited Investor") or a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act (a "Qualified Institutional
Buyer"); provided, however, that if the certifications described above cannot
be provided with respect to the Class X Certificates, (a) the Certificate
Registrar shall require an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar and the Depositor that such transfer may be made pursuant
to an exemption, describing the applicable exemption and
133
the basis therefor, from registration or qualification under the Securities
Act, applicable state securities laws and other relevant laws, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Certificate Registrar,
the Depositor or the Trustee and (b) the Certificate Registrar shall require
the transferor to execute a certification in form and substance satisfactory to
the Certificate Registrar setting forth the facts surrounding such transfer;
provided, further, that no transfer of an Ownership Interest in a Residual
Certificate may be made to any Person other than a Qualified Institutional
Buyer and that transfers of Non-Registered Certificates other than the Residual
Certificates may be made only to Eligible Investors; provided further that a
transfer of a Non-Registered Certificate may be made to a trust that is
otherwise eligible to purchase such Certificate if the transferor provides to
the Certificate Registrar and to the Trustee a certification that interests in
such trust may only be transferred subject to requirements substantially to the
effect set forth in this Section 5.02. The Servicer will furnish, or cause to
be furnished, upon the request of any Holder of Non-Registered Certificates, to
a prospective purchaser of such Non-Registered Certificates who is a Qualified
Institutional Buyer, such information as is specified in paragraph (d)(4) of
Rule 144A with respect to the Trust Fund, unless, at the time of such request,
the entity with respect to which such information is to be provided is subject
to the reporting requirements of Section 15(d) of the Exchange Act. None of the
Depositor, the Trustee, the Fiscal Agent, the Servicer or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the Securities Act or any other securities law or to take
any action not otherwise required under this Agreement to permit the transfer
of any Non-Registered Certificate without registration or qualification. Any
Holder of a Non-Registered Certificate desiring to effect such a transfer
shall, and does hereby agree to, indemnify the Depositor, the Trustee, the
Servicer and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal
and state laws. Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
in a Book-Entry Certificate representing an interest in a Non-Registered
Certificate that is not rated in one of the top four rating categories by a
NRSRO to (i) an Institutional Accredited Investor will require delivery in the
form of a Definitive Certificate, and the Certificate Registrar shall register
such transfer only upon compliance with the foregoing provisions of this
Section 5.02(b), or (ii) a Qualified Institutional Buyer may only be
effectuated by means of an "SRO Rule 144A System" approved for such purpose by
the Commission.
Unless the Non-Registered Certificates have been registered under the
Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
THE SECURITIES ACT.
134
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
Unless the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) have been registered under the
Securities Act, each of such Certificates shall bear a legend substantially to
the following effect:
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO
LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR
(B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR") WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR
OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF
THIS CERTIFICATE.
Unless the Class X Certificates have been registered under the
Securities Act, each of such Certificates shall bear a legend substantially to
the following effect:
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO
LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR") WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
(OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OR (C) PURSUANT TO ANOTHER AVAILABLE
135
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
Unless the Residual Certificates have been registered under the
Securities Act, each of such Certificates shall bear a legend substantially to
the following effect:
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
SUBJECT TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
(c) With respect to the Subordinate Certificates, no sale, transfer,
pledge or other disposition by any Holder of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a
representation letter from the proposed purchaser or transferee of such
Certificate substantially in the form of Exhibit G attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee
benefit plan subject to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, or a governmental plan (as defined in Section 3(32)
of ERISA) subject to any federal, state or local law ("Similar Law") which is,
to a material extent, similar to the foregoing provisions of ERISA or the Code
(each a "Plan") or (b) a person acting on behalf of or using the assets of any
such Plan (including an entity whose underlying assets include Plan assets by
reason of investment in the entity by such Plan and the application of
Department of Labor Regulation ss. 2510.3-101), other than an insurance company
using the assets of its general account under circumstances whereby the
purchase and holding of such Certificates by such insurance company would be
exempt from the prohibited transaction provisions of ERISA and the Code under
Prohibited Transaction Exemption 90-33, as amended by Prohibited Transaction
Exemption 97-34 or (ii) if such Certificate is presented for registration in
the name of a purchaser or transferee that is any of the foregoing, an Opinion
of Counsel in form and substance satisfactory to the Certificate Registrar and
the Depositor to the effect that the acquisition and holding of such
Certificate by such purchaser or transferee will not result in the assets of
the Trust Fund being deemed to be "plan assets" and subject to the fiduciary
responsibility provisions of ERISA, the prohibited transaction provisions of
the Code or the provisions of any Similar Law, will not constitute or result in
a "prohibited transaction" within the meaning of ERISA, Section 4975 of the
Code or any Similar Law, and will not subject the Trustee, the Fiscal Agent,
the Certificate Registrar, the Servicer, the Special Servicer, the Paying
Agent, the Underwriter, the Placement Agent or
136
the Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Agreement. The Certificate Registrar shall
not register the sale, transfer, pledge or other disposition of any such
Certificate unless the Certificate Registrar has received either the
representation letter described in clause (i) above or the Opinion of Counsel
described in clause (ii) above. The costs of any of the foregoing
representation letters or Opinions of Counsel shall not be borne by any of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal Agent,
the Paying Agent, the Underwriter, the Placement Agent, the Certificate
Registrar or and the Trust Fund. Each Certificate Owner of a Subordinate
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of
any such Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding, the
Servicer will make available, or cause to be made available, upon request, to
any Holder and any Person to whom any such Certificate of any such Class of
Certificates may be offered or sold, transferred, pledged or otherwise disposed
of by such Holder, information with respect to the Servicer, the Special
Servicer or the Mortgage Loans necessary to the provision of an Opinion of
Counsel described in this Section 5.02(c).
Each of the Subordinate Certificates shall bear a legend substantially
to the following effect:
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT
REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF
SUCH CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT SUCH
PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE
ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN
AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ? 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF
137
SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH
CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT
IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE
PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE
SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
(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 Paying Agent under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) No Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Disqualified Organization or agent
thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan (such Plan or Person, an "ERISA Prohibited Holder")
or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1 (a
"Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is not a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder
or a Non-U.S. Person, and that it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by them;
138
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder
or a Non-U.S. Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be effected;
and
(D) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts
to transfer its Ownership Interest in such Residual Certificate and
(2) not to transfer its Ownership Interest in such Residual
Certificate unless it provides to the Certificate Registrar a letter
substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate
that was in compliance with the provisions of this Section 5.02(d)
shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such
Transfer of such Residual Certificate. None of the Trustee, the
Servicer, the Authenticating Agent and the Certificate Registrar shall
be under any liability to any Person for any registration of Transfer
of a Residual Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such Certificate to
the Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement; provided, however, that
the Certificate Registrar shall be under such liability for a
registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization
or Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(d)(i)(C) above.
(iii) The Servicer shall make available to the Internal
Revenue Service and those Persons specified by the REMIC Provisions,
upon written request of the Trustee, all information in its possession
and necessary to compute any tax imposed as a result of the Transfer
of an Ownership Interest in a Residual Certificate to any Person who
is a Disqualified Organization or Agent thereof, including the
information described in Treasury Regulations sections 1.860D-1(b)(5)
and 1.860E-2(a)(5) with respect to the "excess inclusions" of such
Residual Certificate.
(e) Subject to the restrictions on transfer and exchange set forth in
this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized
attorney), in the case of transfer, and a written request for exchange in the
case of exchange. Subject to the restrictions on transfer set forth
139
in this Section 5.02 and Depository Rules, any Certificate Owner owning a
beneficial interest in a Non-Registered Certificate may cause the Certificate
Registrar to request that the Depository exchange such Certificate Owner's
beneficial interest in a Book-Entry for a Definitive Certificate or
Certificates. Following a proper request for transfer or exchange, the
Certificate Registrar shall, within 5 Business Days of such request if made at
such Registrar Office, or within 10 Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), execute and deliver at
such Registrar Office or at the office of such transfer agent, as the case may
be, to the transferee (in the case of transfer) or Holder (in the case of
exchange) or send by first class mail (at the risk of the transferee in the
case of transfer or Holder in the case of exchange) to such address as the
transferee or Holder, as applicable, may request, a Definitive Certificate or
Certificates, as the case may require, for a like aggregate Denomination and in
such Denomination or Denominations as may be requested. The presentation for
transfer or exchange of any Definitive Certificate shall not be valid unless
made at the Registrar Office or at the office of a transfer agent by the
registered Holder in person, or by a duly authorized attorney-in-fact. The
Certificate Registrar may decline to accept any request for an exchange or
registration of transfer of any Certificate during the period of 15 days
preceding any Distribution Date.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that (i) a Definitive Certificate (other than a Definitive
Certificate issued in exchange for a Certificate representing an interest in
the Class A-1, Class A-2, Class B, Class C, Class D, Class E or Class X
Certificates) is being held by or for the benefit of a Person who is not an
Eligible Investor or (ii) that (A) a beneficial interest in a Book-Entry
Certificate representing a Non-Registered Certificate or (B) any Residual
Certificate is held by or for the benefit of a Person who is not a Qualified
Institutional Buyer or (iii) that such holding is unlawful under the laws of a
relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Definitive Certificate or beneficial interest in such
Book-Entry Certificate to an Eligible Investor (in the case of a circumstance
described in clause (i) or (iii) above) or to a QIB (in the case of a
circumstance described in clause (ii) above) within 14 days after notice of
such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(g) The Certificate Registrar shall provide to the Trustee, the
Servicer, the Special Servicer, the Paying Agent and the Depositor, upon
request of any such party, an updated copy of the Certificate Register.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum
140
sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer or exchange.
(i) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate
Registrar shall hold such cancelled Certificates procedures.
SECTION 5.03. Book-Entry Certificates.
(a) The Regular Certificates sold to Qualified Institutional Buyers
shall 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 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 Section
5.02(e) above or subsection (c) below, shall not be entitled to Definitive
Certificates in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Fiscal Agent, the Depositor and the Certificate Registrar may for all
purposes, including the making of payments due on the Book-Entry Certificates,
deal with the Depository as the authorized representative of the Certificate
Owners with respect to such Certificates for the purposes of exercising the
rights of Certificateholders hereunder. The rights of Certificate Owners with
respect to the Book-Entry Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent and
the Certificate Registrar in writing that the Depository is no longer willing
or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository with respect to all, any Class or any
portion of any Class of the Certificates or (iii) the Trustee determines that
Definitive Certificates are required in accordance with the provisions of
Section 5.03(e), the Paying Agent shall notify the affected Certificate
141
Owners of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository or any custodian acting on behalf of the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, within 5 Business Days of such request if made at the
Registrar Office, or within 10 Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), the Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Paying Agent, the Servicer, the Trustee, the Fiscal Agent,
the Special Servicer, the Authenticating Agent and the Certificate Registrar
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to
exercise Voting Rights with respect to, and to transfer and exchange such
Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co.
and (ii) shall bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or has been directed to institute
any judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of all or any portion of the Certificates
evidenced by Book-Entry Certificates, the Trustee may in its sole discretion
determine that such Certificates shall no longer be represented by such
Book-Entry Certificates. In such event, the Certificate Registrar will execute,
the Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Trustee shall notify the
142
affected Certificate Owners and make appropriate arrangements for the
effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial interest
in a Book-Entry Certificate for a Definitive Certificate, as provided herein,
the Certificate Registrar shall endorse on a schedule affixed to the related
Book-Entry Certificate (or on a continuation of such scheduled affixed to such
Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Definitive Certificate issued in exchange therefor or upon
transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Book-Entry Certificate, such transfer
may be effected only in accordance with Depository Rules and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(a), (ii) written instructions given in
accordance with Depository Rules directing the Certificate Registrar to credit
or cause to be credited to another account a beneficial interest in the related
Book-Entry Certificate, in an amount equal to the Denomination of the
Definitive Certificate to be so transferred, (iii) a written order given in
accordance with the Depository Rules containing information regarding the
account to be credited with such beneficial interest and (iv) if the affected
Certificate is a Non-Registered Certificate other than a Class X Certificate,
an Investment Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder or the Holder's transferee
(as instructed by the Holder), and the Certificate Registrar shall instruct the
Depository or the custodian holding such Book-Entry Certificate on behalf of
the Depository to increase the Denomination of the related Book-Entry
Certificate by the Denomination of the Definitive Certificate to be so
transferred, and to credit or cause to be credited to the account of the Person
specified in such instructions a corresponding Denomination of such Book-Entry
Certificate.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and of like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of
143
the Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar and any agents of any
of them may treat the person in whose name such Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 9.01 and for all other purposes whatsoever, except as and
to the extent provided in the definition of "Certificateholder," and none of
the Depositor, the Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar and any agent of any of them shall be affected
by notice to the contrary except as provided in Section 5.02(d).
SECTION 6.06. Appointment of Paying Agent.
LaSalle National Bank is hereby initially appointed Paying Agent. If
the Paying Agent resigns or is terminated, the Trustee shall appoint a
successor Paying Agent which may be an Affiliate thereof; provided, however,
that if the Trustee resigns as Paying Agent in connection with its resignation
as Trustee pursuant to Section 8.07, the Depositor shall appoint a successor
Paying Agent.
[End of Article V]
144
ARTICLE VI.
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation or limited liability company, as the case may be,
under the laws of the jurisdiction of its incorporation or organization, and
each will obtain and preserve its qualification to do business as a foreign
entity 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.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or
substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, the Servicer
or the Special Servicer shall be a party, or any Person succeeding to the
business of the Depositor, the Servicer or the Special Servicer, shall be the
successor of the Depositor, the Servicer and the Special Servicer, as the case
may be, hereunder, without the execution or filing of any paper (other than an
assumption agreement wherein the successor shall agree to perform the
obligations of and serve as the Depositor, the Servicer or the Special
Servicer, as the case may be, in accordance with the terms of this Agreement)
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others.
(a) Neither the Depositor, the Servicer, the Special Servicer nor any
of the directors, officers, employees or agents of any of the foregoing shall
be under any liability to the Trust or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Servicer, the Special Servicer
or any such Person against any breach of warranties or representations made
herein or any liability which would
145
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of negligent disregard of obligations
and duties hereunder. The Depositor, the Servicer, the Special Servicer and any
director, officer, manager, member, employee or agent of the Depositor, the
Servicer or the Special Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Servicer, the
Special Servicer and any director, officer, manager, member, employee or agent
of any of the foregoing shall be indemnified and held harmless by the Trust
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense: (i) specifically required to be borne thereby pursuant to
the terms hereof; (ii) incurred in connection with any breach of a
representation, warranty or covenant made by it herein; (iii) incurred by
reason of bad faith, willful misconduct or negligence in the performance of its
obligations or duties hereunder, or by reason of negligent disregard of such
obligations or duties or (iv) in the case of the Depositor and any of its
directors, officers, employees and agents, incurred in connection with any
violation by any of them of any state or federal securities law.
(b) None of the Depositor, the Servicer and the Special Servicer shall
be under any obligation to appear in, prosecute or defend any legal or
administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor, the Servicer or the Special Servicer may in its discretion undertake
any such action, proceeding, hearing or examination that it may deem necessary
or desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Servicer and the Special
Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans on deposit in the Certificate Account as
provided in this Section 6.0 by Section 3.05(a); provided, however, that
neither the Depositor, the Servicer nor the Special Servicer may be reimbursed
for any expenses in circumstances where they would not otherwise be entitled to
indemnification under this Agreement.
(c) Each of the Servicer and the Special Servicer agrees to indemnify
the Depositor, the Trustee, the Fiscal Agent and the Trust and any director,
officer, employee or agent thereof, and hold them harmless, from and against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Servicer or the Special Servicer,
as the case may be, in the performance of its obligations and duties under this
Agreement (including acts or omissions occurring in their capacity as agent for
the Trustee) or by reason of reckless disregard by the Servicer or the Special
Servicer, as the case may be, of its duties and obligations hereunder or by
reason of breach of any representations or warranties made herein. The Trustee,
the Depositor or the Fiscal Agent, as the case may be, shall immediately notify
the Servicer or the Special Servicer, as applicable, if a claim is made by a
third party with respect to this Agreement or the Mortgage
146
Loans entitling it to indemnification hereunder, whereupon the Servicer or the
Special Servicer, as the case may be, shall assume the defense of such claim
(with counsel reasonably satisfactory to the Trustee, the Depositor or the
Fiscal Agent) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so
notify the Servicer or the Special Servicer, as the case may be, shall not
affect any rights any of the foregoing Persons may have to indemnification
under this Agreement or otherwise, unless the Servicer's, or the Special
Servicer's, as the case may be, defense of such claim is materially prejudiced
thereby. The indemnification provided in this Section 6.03 herein shall survive
the termination of this Agreement and the termination or resignation of the
Servicer, the Trustee, the Fiscal Agent and the Special Servicer.
SECTION 6.04. Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor, the
Servicer and the Special Servicer shall resign from their respective
obligations and duties hereby imposed on each of them except (a) upon
determination that such party's duties hereunder are no longer permissible
under applicable law or are in material conflict with, by reason of applicable
law, the other activities carried on by it or (b) in the case of the Servicer
or Special Servicer, upon the appointment of, and the acceptance of such
appointment by, a successor Servicer or Special Servicer, as the case may be,
and receipt by the Trustee of written confirmation from each applicable Rating
Agency that such resignation and appointment will not cause the Rating Agency
to downgrade, withdraw or qualify any of the ratings assigned by the Rating
Agency to any Class of Certificates. Any such determination permitting the
resignation of the Depositor, the Servicer or the Special Servicer pursuant to
clause (a) above shall be evidenced by an Opinion of Counsel (at the expense of
the resigning party) to such effect delivered to the Trustee. No such
resignation by the Servicer or the Special Servicer shall become effective
until the Trustee or a successor Servicer shall have assumed the Servicer's or
Special Servicer's, as applicable, responsibilities and obligations in
accordance with Section 7.02.
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
[End of Article VI]
147
ARTICLE VII.
DEFAULT
SECTION 7.01. Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Defaults" wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to make any remittance
required to be made by the Servicer to the Certificate Account, Escrow
Account or either Distribution Account on the day and by the time such
remittance is required to be made under the terms of this Agreement;
or
(ii) any failure by the Special Servicer to deposit into, or
to remit to the Servicer for deposit into, or the Servicer to make a
required deposit into the Certificate Account or the REO Account, or
to deposit into, or to remit to the Trustee or the Paying Agent for
deposit into, the Lower-Tier Distribution Account any amount required
to be so deposited or remitted by the Servicer or the Special
Servicer, as the case may be, pursuant to, and at the time specified
by, the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any other
of the covenants or agreements on the part of the Servicer or the
Special Servicer contained in this Agreement which continues
unremedied for a period of 30 days (15 days in the case of a failure
to pay the premium for any insurance policy required to be maintained
hereunder) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer or the Special Servicer, as the case may be, by any other
party hereto, or to the Servicer, the Special Servicer, the Depositor
and the Trustee by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; or
(iv) any breach on the part of the Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23
or Section 3.24, as applicable, which materially and adversely affects
the interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall have been given
to the Servicer or the Special Servicer, as the case may be, by the
Depositor or the Trustee, or to the Servicer, the Special Servicer,
the Depositor and the Trustee by the Holders of Certificates of any
Class evidencing, as to such Class, Percentage Interests aggregating
not less than 25%; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjust-
148
ment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer or the Special Servicer
and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(vi) the Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Servicer or the Special Servicer or of or relating to
all or substantially all of its property; or
(vii) the Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations or take any corporate action in furtherance of the
foregoing; or
(viii) the Trustee shall have received written notice from
either Rating Agency that the continuation of the Servicer or Special
Servicer, as the case may be, has resulted, or would result, in and of
itself, in a downgrading, qualification or withdrawal of the
then-current rating on any Class of Certificates that are rated by a
Rating Agency if the Servicer or Special Servicer, as the case may be,
is not replaced.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of the Voting Rights, shall, terminate, by notice in
writing to the Defaulting Party, with a copy of such notice to the Depositor,
all of the rights and obligations of the Defaulting Party under this Agreement
and in and to the Mortgage Loans and the proceeds thereof; provided, however,
that the Defaulting Party shall be entitled to the payment of accrued and
unpaid compensation and reimbursement through the date of such termination as
provided for under this Agreement for services rendered and expenses incurred.
From and after the receipt by the Defaulting Party of such written notice, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a Holder of any Certificate) or the
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 Servicer and
Special Servicer each agree that if it is terminated pursuant to this Section
7.01(b), it shall promptly (and in any event no later than 20 Business Days
subsequent to its receipt of the notice of termination) provide the Trustee
with all documents and records requested by it to enable it to assume the
Servicer's or the
149
Special Servicer's, as the case may be, functions hereunder, and shall
cooperate with the Trustee in effecting the termination of the Servicer's or
the Special Servicer's, as the case may be, responsibilities and rights
hereunder, including, without limitation, the transfer within 5 Business Days
to the Trustee for administration by it of all cash amounts which shall at the
time be or should have been credited by the Servicer to the Certificate Account
or any Servicing Account (if it is the Defaulting Party) or by the Special
Servicer to the REO Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans or any REO Property; provided,
however, that the Servicer and the Special Servicer each shall, if terminated
pursuant to this Section 7.01(b), continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the date of
such termination, whether in respect of Advances (in the case of the Servicer)
or otherwise, and it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any
such termination).
(c) The Holder or Holders of more than 50% of the aggregate
Certificate Balance of the then Controlling Class shall be entitled to
terminate the rights and obligations of the Special Servicer under this
Agreement, with or without cause, upon 10 Business Days' notice to the Special
Servicer, the Servicer and the Trustee, and to appoint a successor Special
Servicer; provided, however, that (i) such successor will meet the requirements
set forth in Section 7.02 and (ii) as evidenced in writing by each of the
Rating Agencies, the proposed successor of such Special Servicer will not, in
and of itself, result in a downgrading, withdrawal or qualification of the then
current ratings provided by the Rating Agencies in respect to any Class of then
outstanding Certificates that is rated. No penalty or fee shall be payable to
the Special Servicer with respect to any termination pursuant to this Section
7.01(c).
(d) The Servicer and Special Servicer shall, from time to time, take
all such actions as are required by them in order to maintain their respective
status as an approved servicer and special servicer, as applicable and as
pertains to this transaction, with each of the Rating Agencies.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, an the
case may be, either resigns pursuant to the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and;
provided that no acceptable successor has been appointed, the Trustee shall be
the successor to the Servicer or Special Servicer, as the case may be, in all
respects in its capacity as Servicer or Special Servicer under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties, liabilities and limitations on liability
relating thereto and that arise thereafter placed on or for the benefit of the
Servicer or Special Servicer by the terms and provisions hereof; provided,
however, that any failure to perform such duties or responsibilities caused by
the terminated party's failure under Section 7.01 to provide information or
moneys required hereunder shall not be considered a default by such successor
hereunder. The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen prior to its
termination as Servicer, and the appointment of a successor Special Servicer
shall not affect any liability of the
150
predecessor Special Servicer which may have arisen prior to its termination as
Special Servicer. The Trustee in its capacity as successor to the Servicer or
the Special Servicer, as the case may be, shall not be liable for any of the
representations and warranties of the Servicer or the Special Servicer,
respectively, herein or in any related document or agreement, for any acts or
omissions of the predecessor Servicer or Special Servicer or for any losses
incurred by the Servicer pursuant to Section 3.06 hereunder, nor shall the
Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee as successor Servicer shall be entitled to the Servicing
Fees and all fees relating to the Mortgage Loans which the Servicer would have
been entitled to if the Servicer had continued to act hereunder, including but
not limited to any income or other benefit from any Permitted Investment
pursuant to Section 3.06, and as successor to the Special Servicer shall be
entitled to the Special Servicing Fees to which the Special Servicer would have
been entitled if the Special Servicer had continued to act hereunder. Should
the Trustee succeed to the capacity of the Servicer or the Special Servicer,
the Trustee shall be afforded the same standard of care and liability as the
Servicer or the Special Servicer, as applicable, hereunder notwithstanding
anything in Section 8.01 to the contrary, but only with respect to actions
taken by it in its role as successor Servicer or successor Special Servicer, as
the case may be, and not with respect to its role as Trustee hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to act as
successor to the Servicer or Special Servicer, or shall, if it is unable to so
act, or if the Trustee is not approved as a servicer or special servicer, as
applicable, by each Rating Agency or if the Holders of Certificates entitled to
at least 51% of the Voting Rights so request in writing to the Trustee,
promptly appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution which meets the criteria set
forth in Section 6.04 and otherwise herein, as the successor to the Servicer or
the Special Servicer, as applicable, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Servicer or Special
Servicer hereunder. No appointment of a successor to the Servicer or the
Special Servicer hereunder shall be effective until the assumption in writing
by the successor to the Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter.
Pending appointment of a successor to the Servicer or the Special Servicer
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided. In connection with
such appointment and assumption of a successor to the Servicer or Special
Servicer as described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation with
respect to a successor Servicer or successor Special Servicer, as the case may
be, shall be in excess of that permitted the terminated Servicer or Special
Servicer, as the case may be, hereunder. The Trustee, the Servicer For the
Special Servicer (whichever is not the terminated party) and such successor
shall take such action, consistent with this Agreement, an shall be necessary
to effectuate any such succession. Any costs and expenses associated with the
transfer of the servicing function (other than with respect to a termination
without cause) under this Agreement shall be borne by the predecessor servicer.
151
. SECTION 7.03. Notification to Certificateholders
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3% Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default within 20 days of the receipt of
notice from the Trustee of the occurrence of such Event of Default; provided,
however, that an Event of Default under clause (i) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled
to the same Voting Rights with respect to the matters described above as they
would if any other Person held such Certificates.
SECTION 7.05. Trustee and Fiscal Agent as Makers of Advances.
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances, the Trustee shall immediately notify the Fiscal
Agent of such circumstances in writing, and the Trustee shall perform such
obligations (x) within five Business Days of such failure by the Servicer with
respect to Servicing Advances to the extent the Trustee has actual knowledge of
such failure with respect to such Servicing Advances and (y) by 11:00 a.m.,
Dallas time, on the Business Day next succeeding the related Servicer
Remittance Date with respect to P&I Advances. With respect to any such Advance
made by the Trustee, the Trustee shall succeed to all of the Servicer's rights
with respect to Advances hereunder, including, without limitation, the
Servicer's rights of reimbursement and interest on each Advance at the
Reimbursement Rate, and rights to determine that a proposed Advance is a
Nonrecoverable P&I Advance or Servicing Advance, as the case may be, (without
regard to any impairment of any such rights of reimbursement caused by such
Servicer's default in its obligations hereunder); provided, however, that if
Advances made by both the Trustee and the Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts
152
available to repay such Advances and the interest thereon hereunder shall be
applied entirely to the Advances outstanding to the Trustee, until such
Advances shall have been repaid in full, together with all interest accrued
thereon, prior to reimbursement of the Servicer for such Advances. The Trustee
shall be entitled to conclusively rely on any notice given with respect to a
Nonrecoverable Advance hereunder. In the event the Fiscal Agent is not the
initial Fiscal Agent, with respect to any Distribution Date that the Trustee is
required to make any P&I Advances, immediately upon making such P&I Advances
the Trustee shall notify the Fiscal Agent by facsimile that such P&I Advances
have been made.
(b) In the event that the Trustee fails to fulfill its obligations
hereunder to make any Advances following the failure of the Servicer to make an
Advance, the Fiscal Agent shall perform such obligations (x) within one
Business Day of such failure by the Trustee with respect to Servicing Advances
and (y) by no later than the close of business, Dallas time, on the related
Distribution Date with respect to P&I Advances, and, with respect to any such
Advance made by the Fiscal Agent, the Fiscal Agent shall succeed to all of the
Trustee's rights with respect to any such Advance hereunder; provided, however,
that if Advances made by the Servicer, the Trustee and the Fiscal Agent shall
at any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and interest hereunder
shall be applied entirely to the Advances outstanding to the Fiscal Agent,
until such Advances shall have been repaid in full, together with all interest
accrued thereon. The Fiscal Agent shall be entitled to conclusively rely on any
notice given with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
153
ARTICLE VIII.
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement
in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by
the Depositor, the Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
154
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement (unless a higher percentage of Voting
Rights is required for such action).
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
which has not been cured, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be personally liable for any
action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default which may have occurred,
the Trustee shall not be bound
155
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it
by the terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability as a condition to taking
any such action. The reasonable expense of every such reasonable
examination shall be paid by the Servicer or, if paid by the Trustee,
shall be repaid by the Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys; provided, however, that the appointment
of such agents or attorneys shall not relieve the Trustee of its
duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee
shall not be deemed to have notice of any Event of Default 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 Servicer or the Special Servicer (unless the Trustee
is acting as Servicer or Special Servicer, as the case may be) or of
the Depositor.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
Neither the Trustee nor the Fiscal Agent makes any representations as to the
validity or sufficiency of this Agreement or of any Certificate (other than as
to the signature, if any, of the Trustee set forth thereon) or of any Mortgage
Loan or related document. Neither the Trustee nor the Fiscal Agent shall be
accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in
or withdrawn from the Certificate Account or any other account by or on behalf
of the Depositor, the Servicer or the Special Servicer. Neither the Trustee nor
the Fiscal Agent shall be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Servicer or the Special Servicer,
and accepted by the Trustee or the Fiscal Agent, as applicable, in good faith,
pursuant to this Agreement.
156
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
Each of the Trustee and the Fiscal Agent in its individual capacity,
not as Trustee or Fiscal Agent, may become the owner or pledgee of
Certificates, and may deal with the Depositor, the Servicer, the Special
Servicer, the Placement Agent and the Underwriter in banking transactions, with
the same rights it would have if it were not Trustee or the Fiscal Agent, as
applicable.
Section 8.05. Payment of Trustee's Fees; Indemnification of Trustee
and Fiscal Agent.
(a) The Servicer covenants and agrees to pay to the Trustee or any
successor Trustee from time to time, and the Trustee or any successor Trustee
shall be entitled to receive from the Servicer the Trustee Fee (which shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust) for all services rendered by the Trustee in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee.
(b) The Trustee, the Fiscal Agent and any director, officer, employee
or agent of the Trustee or the Fiscal Agent shall be entitled to be indemnified
and held harmless by the Trust Fund (to the extent of amounts on deposit in the
Lower-Tier Distribution Account from time to time) against any loss, liability
or expense (including, without limitation, costs and expenses of litigation,
and of investigation, counsel fees, damages, judgments and amounts paid in
settlement, and expenses incurred in becoming successor servicer, to the extent
not otherwise paid hereunder) arising out of, or incurred in connection with,
any act or omission of the Trustee or the Fiscal Agent, as applicable, relating
to the exercise and performance of any of the powers and duties of the Trustee
or the Fiscal Agent, as applicable, hereunder; provided, however, that neither
the Trustee, the Fiscal Agent nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (i)
allocable overhead, (ii) expenses or disbursements incurred or made by or on
behalf of the Trustee or the Fiscal Agent, as applicable, in the normal course
of the Trustee's performing its duties in accordance with any of the provisions
hereof, which are not "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-l(b)(3)(ii), (iii) any expense or
liability specifically required to be borne thereby pursuant to the terms
hereof or (iv) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's or the
Fiscal Agent'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 or the Fiscal Agent made
herein. The provisions of this Section 8.05(b) shall survive any resignation or
removal of the Trustee and/or Fiscal Agent and appointment of a successor
thereto.
157
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank, national banking
association or a trust company, organized and doing business under the laws of
any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer or the Special Servicer (except during any
period when the Trustee is acting as, or has become successor to, the Servicer
or the Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated either (a) if a
Fiscal Agent is then currently in place, not less than (1) "Baa2" by Moody's
and (2) "BBB" by DCR (provided that the Fiscal Agent is not an entity that in
and of itself would result in the downgrading, withdrawal or qualification of
Moody's and DCR's respective rating of any of the then-rated Certificates) or
(b) if a Fiscal Agent is not then in place, "Aa2" by Moody's and "AA" by DCR
(or such entity as would not, as evidenced in writing by the Rating Agency,
result in the qualification, downgrading or withdrawal of any of the ratings
then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In the event the place of business from which the
Trustee administers the Upper-Tier REMIC and the Lower-Tier REMIC is in a state
or local jurisdiction that imposes a tax on the Trust Fund on the net income of
a REMIC (other than a tax corresponding to a tax imposed under the REMIC
Provisions), the Trustee shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the
Lower-Tier REMIC from a state and local jurisdiction that does not impose such
a tax.
SECTION 8.07. Resignation and Removal of the Trustee and the Fiscal
Agent.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
158
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Servicer, or if at any time
the Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Servicer, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by the Servicer.
(d) Subject to the last sentence of the last paragraph of this Section
8.07(d), the Fiscal Agent shall not be entitled to resign, except under a
determination that it may no longer perform its obligations and duties under
applicable law or such obligations and duties are in material conflict by
reason of applicable law with any other activities carried on by it. Any such
determination is required to be evidenced by an Opinion of Counsel to such
effect delivered to the Depositor and the Trustee. The Fiscal Agent may also
resign from its obligations and duties under this Agreement at any time upon
reasonable notice to the Trustee, provided that (i) a successor fiscal agent is
willing to assume the obligations, responsibilities, and covenants to be
performed by the Fiscal Agent on substantially the same terms and conditions,
and for not more than equivalent compensation, (ii) the Fiscal Agent bears all
costs associated with such resignation, (iii) the successor fiscal agent has a
long term debt rating of at least "Aa2" from Moody's and "AA" from DCR or, as
confirmed in writing by each Rating Agency, is an entity that in and of itself
would not result in a downgrading, withdrawal or qualification of any rating of
any then-rated Certificate, (iv) the successor fiscal agent is approved by the
Depositor and the Trustee and (v) the Rating Agencies shall have confirmed in
writing that the appointment of such successor fiscal agent will not adversely
affect or result in a withdrawal, downgrading, or qualification of the ratings
on the Certificates that are then-rated.
Upon any resignation or removal of the Fiscal Agent, the Trustee will
be required to designate a successor Fiscal Agent whose appointment will not
adversely affect the ratings on the Certificates then rated, unless (i) there
is a successor Fiscal Agent already provided for in accordance with the proviso
to the last sentence of the preceding paragraph in this Section 8.07(d) or (ii)
the long-term senior unsecured debt of the Trustee is rated "Aa2" by Moody's
and "AA" by DCR (or such other rating by either Rating Agency as would not, as
evidenced in writing by such Rating Agency, adversely affect any of the ratings
then assigned thereby to the Certificates).
159
Any resignation or removal of the Trustee and the Fiscal Agent and
appointment of a successor Trustee and Fiscal Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee and Fiscal Agent as provided in Section
8.08, except that the resignation or removal of the Fiscal Agent shall become
effective immediately if, at the time of such resignation or removal, the
long-term senior unsecured debt of the Trustee is rated "Aa2" by Moody's and
"AA" by DCR (or such other rating by either Rating Agency as would not, as
evidenced in writing by such Rating Agency, adversely affect any of the ratings
then assigned thereby to the Certificates).
Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for
services rendered and expenses incurred. No Trustee or Fiscal Agent shall be
personally liable for any action or omission of any successor Trustee or
successor Fiscal Agent. Notwithstanding anything to the contrary herein, the
resignation or removal of the initial Trustee shall automatically result in the
simultaneous resignation or removal of the initial Fiscal Agent.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee or Fiscal Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Servicer, the Special Servicer and to its predecessor Trustee or Fiscal Agent,
as applicable, an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee or Fiscal
Agent, as applicable, shall become effective and such successor Trustee or
Fiscal Agent, as applicable, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee
or Fiscal Agent herein. The predecessor Trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian shall become the agent of the successor Trustee),
and the Depositor, the Servicer, the Special Servicer and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor Trustee all such rights, powers, duties and obligations, and to
enable the successor Trustee to perform its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee or Fiscal
Agent as provided in this Section 8.08, the Servicer shall mail notice of the
succession of such Trustee or Fiscal Agent hereunder to the Depositor and the
Certificateholders. If the Servicer fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee or Fiscal Agent, such
successor Trustee or Fiscal Agent, as applicable, shall cause such notice to be
mailed at the expense of the Servicer.
160
SECTION 8.09. Merger or Consolidation of Trustee or Fiscal Agent.
Any Person into which the Trustee or the Fiscal Agent may be merged or
converted or with which it may be consolidated or any Person resulting from any
merger, conversion or consolidation to which the Trustee or the Fiscal Agent
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Trustee or the Fiscal Agent, shall be the
successor of the Trustee or the Fiscal Agent, respectively, hereunder;
provided, that, in the case of the Trustee, such successor Person shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee or the Fiscal
Agent, as the case may be, will provide notice of such event to the Servicer,
the Special Servicer, the Depositor and the Rating Agencies.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund,
and to vest in such Person or Persons, in such capacity, such title to the
Trust Fund, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by
it of a request to do so, or in case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Servicer or the Special Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title to
the Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
161
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder; provided, however, that the Trustee shall have no liability for the
actions of a co-trustee or a separate trustee not within the express authority
of such co-trustee or separate trustee.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder
in connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all
acts and omissions of any Custodian. Any Custodian appointed hereunder must
maintain a fidelity bond and errors and omissions policy in an amount customary
for Custodians which serve in such capacity in commercial mortgage loan
securitization transactions.
SECTION 8.12. Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee a copy of any private placement memorandum or other disclosure document
used by the Depositor or its Affiliate in connection with the offer and sale of
the Class of Certificates to which such Non-Registered Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee, the Depositor promptly shall inform the Trustee of such event and
shall deliver to the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Trustee shall
maintain at its offices primarily responsible for administering the Trust Fund
and shall, upon reasonable advance notice, make available during
162
normal business hours for review by any Holder of a Certificate, the Depositor,
the Servicer, the Special Servicer, any Rating Agency or any other Person to
whom the Trustee believes such disclosure is appropriate, 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 any amendments hereto
entered into pursuant to Section 11.01, (b) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (c) all Officer's Certificates delivered to the Trustee
since the Closing Date pursuant to Section 3.13, (d) all accountants' reports
delivered to the Trustee since the Closing Date pursuant to Section 3.14, (e)
any inspection report prepared by the Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Trustee and Servicer in respect
of each Mortgaged Property pursuant to Section 3.12(a), (f) as to each Mortgage
Loan pursuant to which the related Mortgagor is required to deliver such items
or the Special Servicer has otherwise acquired such items, the most recent
annual operating statement and rent roll of the related Mortgaged Property and
financial statements of the related Mortgagor and any other reports of the
Mortgagor collected by the Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(b), together
with the accompanying written reports to be prepared by the Special Servicer
and delivered to the Trustee pursuant to Section 3.12(b), (g) any and all
notices, reports and Environmental Assessments delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted 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 (but only for so long as such Mortgaged
Property or the related Mortgage Loan are part of the Trust Fund), (h) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into by the Servicer or the Special Servicer and delivered to the
Trustee pursuant to Section 3.20 (but only for so long as the affected Mortgage
Loan is part of the Trust Fund), (i) any and all Officer's Certificates
delivered to the Trustee to support the Servicer's determination that any P&I
Advance or Servicing Advance was or, if made, would be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, as the case may be, (j) any and
all of the Mortgage Loan documents contained in the Mortgage File, (k) any and
all Appraisals obtained pursuant to the definition of "Appraisal Reduction"
herein, (l) information regarding the occurrence of Servicing Transfer Events
as to the Mortgage Loans and (m) any and all Sub-Servicing Agreements and any
amendments thereto and modifications thereof. Copies of any and all of the
foregoing items will be available from the Trustee upon request; provided,
however, that the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies,
except in the case of copies provided to the Rating Agencies, which shall be
free of charge to the Rating Agencies. In addition, without limiting the
generality of the foregoing, any Class F, Class G, Class H, Class I, Class J
and Class K Certificateholder may upon request obtain from the Trustee a copy
of any factual report (other than the Asset Status Report) delivered to the
Rating Agencies under this Agreement.
(b) The Servicer shall provide certain financial market publishers,
which initially shall be Bloomberg, L.P., the ▇▇▇▇▇ Group and Charter Research
Corporation, on a quarterly basis,
163
the CSSA Standard Information Package with respect to the Mortgaged Properties,
to the extent such information due from the Mortgagors has been received from
the Mortgagors.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the
terms of this Agreement (including the information set forth in Section
8.12(a)), the Servicer and the Trustee shall, in accordance with such
reasonable rules and procedures as each may adopt (which may include the
requirement that an agreement that provides that such information shall be used
solely for purposes of evaluating the investment characteristics of the
Certificates be executed), also provide the reports available to
Certificateholders pursuant to Section 4.02, as well as certain additional
information received by the Servicer or the Trustee, as the case may be, to any
Certificateholder, the Underwriter, the Placement Agent, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided, however, that
the Servicer or the Trustee, as the case may be, shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing copies of such reports or information.
(d) With respect to any information furnished by the Trustee or the
Servicer pursuant to this Section 8.12, the Trustee or Servicer, as the case
may be, shall be entitled to indicate the source of such information and the
Trustee or Servicer, as applicable, may affix thereto any disclaimer it deems
appropriate in its discretion. The Trustee or the Servicer, as applicable,
shall notify Certificateholders of the availability of any such information in
any manner as it, in its sole discretion, may determine. In connection with
providing access to or copies of the items described in the preceding
paragraph, the Trustee or the Servicer, as the case may be, may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting
Person substantially in form and substance reasonably acceptable to the
Servicer or Trustee, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Trustee or the Servicer, as the case
may be, generally to the effect that such Person is a prospective purchaser of
a Certificate or an interest therein, is requesting the information solely for
use in evaluating a possible investment in Certificates and will otherwise keep
such information confidential. Neither the Servicer nor the Trustee shall be
liable for the dissemination of information in accordance with this Agreement.
SECTION 8.13. Representations and Warranties of the Trustee and the
Fiscal Agent.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a banking association chartered under the
laws of the United States of America, duly organized, validly existing
and in good standing under the laws thereof;
164
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the terms of this
Agreement by the Trustee, will not violate the Trustee's charter and
by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument to which
it is a party or which is applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Trustee, enforceable against the
Trustee in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the
rights of creditors of national banking associations specifically and
(b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee which would
prohibit the Trustee from entering into this Agreement or, in the
Trustee's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee; and
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Trustee, or compliance by the Trustee
with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot be
obtained prior to the actual performance by the Trustee of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Trustee to
perform its obligations hereunder.
165
(b) The Fiscal Agent hereby represents and warrants to the Depositor,
the Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Fiscal Agent is a foreign banking corporation, duly
organized, validly existing and in good standing under the laws
governing its creation;
(ii) The execution and delivery of this Agreement by the
Fiscal Agent, and the performance and compliance with the terms of
this Agreement by the Fiscal Agent, will not violate the Fiscal
Agent's charter and by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it
or any of its assets;
(iii) The Fiscal Agent 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 Fiscal Agent, enforceable against
the Fiscal Agent in accordance with the terms hereof, subject to (a)
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally
and the rights of creditors of national banking associations
specifically and (b) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Fiscal Agent 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 Fiscal
Agent's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Fiscal Agent to
perform its obligations under this Agreement or the financial
condition of the Fiscal Agent;
(vi) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent which would
prohibit the Fiscal Agent from entering into this Agreement or, in the
Fiscal Agent's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Fiscal Agent
to perform its obligations under this Agreement or the financial
condition of the Fiscal Agent; and
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Fiscal Agent, or compliance by the
Fiscal Agent with, this Agreement or the consummation of
166
the transactions contemplated by this Agreement, except for any
consent, approval, authorization or order which has not been obtained
or cannot be obtained prior to the actual performance by the Fiscal
Agent of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of
the Fiscal Agent to perform its obligations hereunder.
[End of Article VIII]
167
ARTICLE IX.
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Servicer, the
Special Servicer and the Trustee (other than the obligations of the Trustee to
provide for and make payments to Certificateholders as hereafter set forth)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Controlling Class Certificateholder holding
the largest Certificate Balance of the Certificates of the Controlling Class,
the Servicer, the Special Servicer, or the Holders of the Class LR
Certificates, as described below, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund at a price equal to (a) the sum of (1) the
aggregate Purchase Price of all the Mortgage Loans (exclusive of REO Loans)
included in the Trust Fund and (2) the Appraised Value of each REO Property, if
any, included in the Trust Fund (such Appraisals in clause (a)(2) to be
conducted by an Independent MAI-designated appraiser selected and mutually
agreed upon by the Servicer and the Trustee, and approved by more than 50% of
the Voting Rights of the Classes of Certificates then outstanding (other than
the Controlling Class unless the Controlling Class is the only Class of
Certificates then outstanding)), minus (b) solely in the case where the
Servicer is effecting such purchase, the aggregate amount of unreimbursed
Advances, together with any interest accrued and payable to the Servicer in
respect of such Advances in accordance with Sections 3.03(d) and 4.03(d) and
any unpaid Servicing Fees, remaining outstanding (which items shall be deemed
to have been paid or reimbursed to the Servicer in connection with such
purchase) and (ii) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund and (c) solely in the case where the Special Servicer is effecting
such purchase, any unpaid Special Servicing Fees remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the Special Servicer
in connection with such purchase); 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
ambassador of the United States to the Court of St. James's, living on the date
hereof.
The Controlling Class Certificateholder holding the largest
Certificate Balance of the Certificates of the Controlling Class may, at its
option, elect to purchase all of the Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee and the other parties hereto
no later than 60 days prior to the anticipated date of purchase; provided,
however, that such Controlling Class Certificateholder may so elect to purchase
all of the Mortgage Loans and each REO Property remaining in the Trust Fund
only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage
168
Loans set forth in the Preliminary Statement. In the event that such
Controlling Class Certificateholder does not exercise such purchase option
within 10 Business Days of such Distribution Date, then the Servicer may
purchase all of the Mortgage Loans that are not Specially Serviced Mortgage
Loans and the Special Servicer may purchase all of the Specially Serviced
Mortgage Loans and REO Properties; provided, however, that (i) the Servicer may
not purchase the Mortgage Loans unless the Special Servicer purchases all of
the Specially Serviced Mortgage Loans and REO Properties and (ii) the Special
Servicer may not purchase the Specially Serviced Mortgage Loans and REO
Properties unless the Servicer purchases all of the Mortgage Loans; provided
further that for so long as the Servicer and the Special Servicer do not
exercise their option to purchase all of the Mortgage Loans and REO Properties
following the expiry of such 10 Business Day period, such Controlling Class
Certificateholder may continue to exercise the option granted to it. If the
Mortgage Loans, Specially Serviced Mortgage Loans and REO Properties are not
purchased by such Controlling Class Certificateholder or the Servicer and the
Special Servicer pursuant to their respective options, then the Holders of the
Class LR Certificates may purchase all but not less than all, of such assets
then included in the Trust Fund. In the event that the Servicer, the Special
Servicer, such Controlling Class Certificateholder or the Holders of the Class
LR Certificates purchase any of the Mortgage Loans and each REO Property
remaining in the Trust Fund in accordance with the this Section 9.01, the
Servicer, the Special Servicer, the Controlling Class Certificateholder holding
the largest Certificate Balance of the Certificates of the Controlling Class or
the Holders of the Class LR Certificates, as applicable, shall deposit in the
Lower-Tier Distribution Account not later than the 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, which portion shall be deposited in the
Certificate Account). In addition, the Servicer shall transfer to the
Lower-Tier Distribution Account all amounts required to be transferred thereto
on such Servicer Remittance Date from the Certificate Account pursuant to the
first paragraph of Section 3.04(c), together with any other amounts on deposit
in the Certificate Account that would otherwise be held for future
distribution. Upon confirmation that such final deposits have been made and
receipt of an Opinion of Counsel (which Opinion of Counsel shall be obtained by
and at the expense of the party causing such liquidation and shall in no event
be an expense of the Trustee) to the effect that the resulting liquidation will
be a ?qualified liquidation? within Section 860F(a)(4) of the Code, the Trustee
shall release or cause to be released to the Servicer, the Special Servicer,
such Controlling Class Certificateholder or the Holders of the Class LR
Certificates, as applicable, the Mortgage Files for the remaining Mortgage
Loans to the respective purchasers thereof and shall execute all assignments,
endorsements and other instruments furnished to it by the Servicer, the Special
Servicer, the Controlling Class Certificateholders or the Holders of the Class
LR Certificates, as applicable, as shall be necessary to effectuate transfer of
the Mortgage Loans and REO Properties remaining in the Trust Fund to the
respective purchasers thereof.
Notice of any termination pursuant to this Section 9.01 shall be given
promptly by the Trustee by letter to Certificateholders and each Rating Agency
and, if not previously notified pursuant to this Section 9.01, to the other
parties hereto mailed (a) in the event such notice is given in connection with
the purchase of all of the Mortgage Loans and each REO Property remaining in
the Trust Fund, not earlier than the 15th day and not later than the 25th day
of the
169
month next preceding the month of the final distribution on the Certificates,
or (b) otherwise during the month of such final distribution on or before the
P&I Advance Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is
not applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account pursuant to Section 3.04(c) and upon
presentation and surrender of the Certificates by the Certificateholders on the
final Distribution Date, the Trustee shall distribute to each Certificateholder
so presenting and surrendering its Certificates such Certificateholder's
Percentage Interest of that portion of the amounts then on deposit in the
Upper-Tier Distribution Account that are allocable to payments on the Class of
Certificates so presented and surrendered. Amounts transferred from the
Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of
the final Distribution Date (exclusive of any portion of such amounts payable
or reimbursable to any Person pursuant to clause (ii) of Section 3.05(c)) shall
be allocated for the purposes, in the amounts and in accordance with the
priority set forth in Sections 4.01(a) and 4.01(e) and shall be distributed in
termination and liquidation of the Uncertificated Lower-Tier Interests and the
Class LR Certificates in accordance with Sections 4.01(b) and (d). Any funds
not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed
of in accordance with this Section 9.01 and Section 4.01(g).
SECTION 9.02. Additional Termination Requirements.
In the event the Servicer, the Special Servicer, the Controlling Class
Certificateholder holding the largest Certificate Balance of the Certificates
of the Controlling Class or the Holders of the Class LR Certificates purchases
all of the Mortgage Loans and each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which are intended to meet the
definition of a "qualified liquidation" in Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the
plan of complete liquidation (which shall be the date of mailing of
the notice specified in Section 9.01) in a statement attached to each
of the Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return
pursuant to Treasury Regulations, Section 1.860F-1 and shall satisfy
all requirements of a qualified liquidation under Section 860F of the
Code and any regulations thereunder as are specified in the Opinion of
Counsel delivered pursuant to Section 9.01;
(ii) during such 90-day liquidation period and at or prior to
the time of the making of the final payment on the Certificates, the
Trustee shall sell all of the assets of the Trust Fund to the
Servicer, the Special Servicer, the Controlling Class
170
Certificateholders or the Holders of the Class LR Certificates, as
applicable, for cash; and
(iii) immediately following the making of the final payment
on the Uncertificated Lower-Tier Interests and the Certificates, the
Trustee shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Class LR Certificates (in the case of
the Lower-Tier REMIC) and the Class R Certificates (in the case of the
Upper-Tier REMIC) all cash on hand (other than cash retained to meet
claims), and the Trust Fund and each of the Lower-Tier REMIC and the
Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
171
ARTICLE X.
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall make elections to treat each of the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the Code and, if necessary,
under applicable state law. Such election will be made on Form 1066 or other
appropriate federal tax return for the taxable year ending on the last day of
the calendar year in which the Uncertificated Lower-Tier Interests and the
Certificates are issued. For the purposes of the REMIC election in respect of
the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the
"regular interests" and the Class LR Certificates shall be designated as the
sole class of "residual interests" in the Lower-Tier REMIC. None of the Special
Servicer, the Servicer and the Trustee shall permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in the Lower-Tier
REMIC or the Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of each
of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section
860G(a)(9) of the Code.
(c) The Trustee shall act on behalf of each REMIC in relation to any
tax matter or controversy involving either REMIC and shall represent each REMIC
in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Trustee shall be entitled to reimbursement
therefor out of amounts attributable to the Mortgage Loans and any REO
Properties on deposit in the Certificate Account as provided by Section 3.05(a)
unless such legal expenses and costs are incurred by reason of the Trustee's
willful misfeasance, bad faith or gross negligence. The Holder of the largest
Percentage Interest in each of the Class R and Class LR Certificates shall be
designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T, as
the "tax matters person" of the Upper-Tier REMIC and the Lower-Tier REMIC,
respectively. By their acceptance thereof, the Holders of the largest
Percentage Interest in each of the Class R and Class LR Certificates hereby
agrees to irrevocably appoint the Trustee as their agent to perform all of the
duties of the "tax matters person" for Upper-Tier REMIC and the Lower-Tier
REMIC, respectively.
(d) The Trustee shall prepare or cause to be prepared and shall file,
or cause to be filed, all of the Tax Returns that it determines are required
with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC created
hereunder and shall sign such Tax
172
Returns in a timely manner. The expenses of preparing such returns shall be
borne by the Trust Fund.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate or Class LR Certificate such information as
is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent
and shall forward to the Certificateholders such information or reports as are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption)) and (ii) to the Internal Revenue Service on Form 8811
the name, title, address and telephone number of the "tax matters person" who
will serve as the representative of each of the Lower-Tier REMIC and the
Upper-Tier REMIC created hereunder.
(f) The Trustee shall take such actions and shall cause the Trust Fund
to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
a REMIC under the REMIC Provisions (and the Servicer shall assist the Trustee,
to the extent reasonably requested by the Trustee to do so). Neither the
Servicer nor the Special Servicer shall knowingly or intentionally take any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause to be taken) any action reasonably within its control and the scope of
duties more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of either
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (ii) result in the
imposition of a tax upon either the Lower-Tier REMIC or the Upper-Tier REMIC or
the Trust Fund (including but not limited to the tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, but not
including the tax on "net income from foreclosure property") (either such
event, an "Adverse REMIC Event") unless the Trustee receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the Trustee determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders, at
the expense of the Trust Fund, but in no event at the expense of the Trustee)
to the effect that the contemplated action will not, with respect to the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC created hereunder, endanger
such status or, unless the Trustee determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a
tax (not including a tax on "net income from foreclosure property"). The
Trustee shall not take or fail to take any action (whether or not authorized
hereunder) as to which the Trustee has received an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such action. The
Trustee may consult with counsel to make such written advice, and the cost of
same shall be borne by the party seeking to take the action not expressly
permitted by this Agreement, but in no event at the expense of the Trustee. At
all times as may be required by the Code, the Servicer, Special Servicer and
Trustee will to the extent within their respective control and the scope of
their respective duties more specifically set forth herein, maintain
substantially all of the assets of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as "qualified mortgages" as defined in Section
173
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions
to tax, is imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC, such
tax shall be charged against amounts otherwise distributable to the Holders of
the Certificates, except as provided in the last sentence of this Section
10.01(g); provided, that with respect to the estimated amount of tax imposed on
any "net income from foreclosure property" pursuant to Code Section 860G(d) or
any similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised
by the Servicer in writing), and shall remit to the Servicer such reserved
amounts as the Servicer shall request in order to pay such taxes. Except as
provided in the preceding sentence, the Servicer shall withdraw from the
Certificate Account sufficient funds to pay or provide for the payment of, and
to actually pay, such tax as the Trustee notifies the Servicer that it
estimates to be legally owed by either the Lower-Tier REMIC or the Upper-Tier
REMIC (but such authorization shall not prevent the Trustee from contesting, at
the expense of the Trust Fund (other than as a consequence of a breach of its
obligations under this Agreement), any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The Trustee is hereby authorized to and shall segregate,
into a separate non-interest bearing account, the net income from any
"prohibited transaction" under Code Section 860F(a) or the amount of any
taxable contribution to the Lower-Tier REMIC or the Upper-Tier REMIC after the
Startup Day that is subject to tax under Code Section 860G(d) and use such
income or amount, to the extent necessary, to pay such prohibited transactions
tax. To the extent that any such tax (other than any such tax paid in respect
of "net income from foreclosure property") is paid to the Internal Revenue
Service or applicable state or local tax authorities, the Trustee shall retain
an equal amount from future amounts otherwise distributable to the Holders of
Residual Certificates (as applicable) and shall distribute such retained
amounts, (x) in the case of the Lower-Tier REMIC, to the Holders of the
Uncertificated Lower-Tier Interests to the extent they are fully reimbursed for
any Collateral Support Deficit arising therefrom and then to the Holders of the
Class LR Certificates in the manner specified in Section 4.01(b) and (y) in the
case of the Upper-Tier REMIC, to the Holders of Class A, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class I, Class J, Class K and
Class X Certificates, as applicable, in the manner specified in Section
4.01(a), to the extent they are fully reimbursed for any Collateral Support
Deficit arising therefrom and then to the Holders of the Class R Certificates.
None of the Trustee, the Fiscal Agent, the Trustee or the Special Servicer
shall be responsible for any taxes imposed on either the Lower-Tier REMIC or
the Upper-Tier REMIC except to the extent such taxes arise as a consequence of
a breach of their respective obligations under this Agreement.
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each of the Lower-Tier REMIC and the Upper-Tier
REMIC on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
174
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Lower-Tier REMIC and the Upper-Tier REMIC unless
the Trustee shall have received an Opinion of Counsel (at the expense of the
party seeking to make such contribution) to the effect that the inclusion of
such assets in the Lower-Tier REMIC or the Upper-Tier REMIC will not (i) cause
either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-Tier Interests or Certificates
are outstanding or (ii) subject either the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) The Trustee shall not enter into any arrangement by which the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC will receive
a fee or other compensation for services nor permit the Trust Fund or either
the Lower-Tier REMIC or the Upper-Tier REMIC 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.
(k) Solely for the purposes of Section 1.860G-l(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a "regular
interest" in the Upper-Tier REMIC and by which the Lower-Tier Principal Amount
of each Class of Uncertificated Lower-Tier Interests representing a "regular
interest" in the Lower-Tier REMIC would be reduced to zero is May 16, 2013, is
the Distribution Date immediately following the latest scheduled maturity of
any Mortgage Loan.
(l) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for the Lower-Tier REMIC and the Upper-Tier REMIC.
(m) Neither the Trustee nor the Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by
foreclosure or deed in lieu of foreclosure, (ii) the bankruptcy of the Trust
Fund, (iii) the termination of the Trust Fund pursuant to Article IX of this
Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or III of
this Agreement) or acquire any assets for the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC or sell or dispose of any investments
in the Certificate Account, the Distribution Accounts or the REO Account for
gain unless (a) it has received an Opinion of Counsel that such sale,
disposition or substitution will not affect adversely the status of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) the Trustee has
determined in its sole discretion to indemnify the Trust Fund against such tax,
cause the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC to
be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
175
SECTION 10.02. Depositor, Special Servicer, Paying Agent and Trustee
to Cooperate with Servicer.
(a) The Depositor shall provide or cause to be provided to the
Trustee, within 10 days after the Closing Date, all information or data that
the Servicer 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 Servicer, the Special Servicer, the Paying Agent 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
Servicer in order to enable it to perform its duties hereunder.
SECTION 10.03. Use of Agents.
The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
[End of Article X]
176
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein or
therein, which may be inconsistent with any other provisions herein or
therein or to correct any error;
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
177
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
Certificateholder not consenting thereto; and
(vii) to amend or supplement any provision hereof to the
extent necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in
the aggregate not less than 66 2/3% of the Percentage Interests of each Class
of Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) amend this Section 11.01.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel (at the Trust Fund's expense) to the effect that such amendment or the
exercise of any power granted to the Servicer, the Depositor, the Special
Servicer, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC or cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder
and the Paying Agent and a copy of such amendment to each Rating Agency.
178
(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.
(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 Servicer or the Special Servicer or the Trustee
requests any amendment of this Agreement in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 11.01(a) or (c) shall be payable out
of the Certificate 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 Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the cost
of which shall be paid by the Depositor) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
(c) The Trustee shall make any filings required under Illinois law,
the costs of which, if any, to be at the Trustee's expense.
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 Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund,
179
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 unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding. The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it hereunder or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of any of the Holders of Certificates unless such Holders have offered to the
Trustee reasonable security against the costs, expenses and liabilities which
may be incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in
any manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 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.
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 if personally delivered at or mailed by registered mail,
postage prepaid or transmitted by telecopier with a
180
hard copy mailed as described above in confirmation, to: (i) in the case of the
Depositor, Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq., telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; (ii) in the case of the
Servicer, Banc One Mortgage Capital Markets, LLC, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, telecopy number: (212)
290-4480, with a copy to: Banc One Mortgage Capital Markets, LLC, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇; (iii) in the case of the Special Servicer, AMRESCO
Management, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: President, telecopy number: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to AMRESCO
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
General Counsel, telecopy number: ▇▇▇-▇▇▇-▇▇▇▇; (iv) in the case of the
Trustee, the Fiscal Agent, the initial Paying Agent, the initial Authenticating
Agent and the initial Certificate Registrar, LaSalle National Bank, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Asset-Backed Securities Trust Services Group - Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., Series 1998-C1, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; (vi) in the
case of the Rating Agencies, (a) ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance, telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇ and (b) Duff & ▇▇▇▇▇▇ Credit Rating Co., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Commercial Mortgage Monitoring
Group, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; and (vii) in the case of the Mortgage
Loan Seller, Bear, ▇▇▇▇▇▇▇ Funding, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 272-2619, with a copy to Bear, ▇▇▇▇▇▇▇
Funding, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq., telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; or as to each such Person
such other address as may hereafter be furnished by such Person to the parties
hereto in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not the Certificateholder receives such notice. Any notices to the Trustee
shall be deemed to have been duly given only when received.
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.
SECTION 11.07. Confirmation of Intent: Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement
shall constitute a sale and not a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall
181
be established pursuant to the terms of this Agreement. The Depositor
also intends and agrees that, in such event, (i) the Depositor shall be deemed
to have granted to the Trustee (in such capacity) a first priority security
interest in the Depositor's entire right, title and interest in and to the
assets comprising the Trust Fund, including without limitation, the Mortgage
Loans, all principal and interest received or receivable with respect to the
Mortgage Loans (other than principal and interest payments due and payable
prior to the Cut-off Date and Principal Prepayments received prior to the
Cut-off Date), all amounts held from time to time in the Certificate Account,
the Distribution Account and, if established, the REO Account, and all
reinvestment earnings on such amounts, and all of the Depositor's right, title
and interest in and to the proceeds of any title, hazard or other Insurance
Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
SECTION 11.08. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.09. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.10. Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Servicer or the
Special Servicer;
(iv) any change in the location of either of the Distribution
Accounts;
(v) the repurchase of Mortgage Loans by the Mortgage Loan
Seller pursuant to Section 3.3 of the Mortgage Loan Purchase and Sale
Agreement; and
(vi) the final payment to any Class of Certificateholders.
182
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
and
(iii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts of the Paying
Agent or the Trustee;
(iv) any change in the lien priority of any Mortgage Loan;
(v) any additional lease to an anchor tenant or termination
of any existing lease to an anchor tenant at retail properties for any
Mortgage Loan with a Stated Principal Balance that is greater than 5%
of the then aggregate outstanding principal balances of the Mortgage
Loans;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Each of the Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described
in Section 3.13;
(ii) inspection reports and other items delivered to each of
the Servicer and Special Servicer pursuant to Sections 3.12(a) and
3.12(b);
(iii) each of its annual independent public accountants'
servicing reports described in Section 3.14;
(iv) a CSSA Standard Information Package with respect to each
Distribution Date required to be delivered pursuant to Section
4.02(b); and
(v) each waiver and consent provided pursuant to Section
3.08.
(d) The Paying Agent shall promptly furnish to each Rating Agency a
copy of the statement to Certificateholders distributed pursuant to Section
4.02(a).
(e) The Servicer and the Special Servicer, as applicable, shall
furnish to each Rating Agency with respect to each Mortgage Loan such
information as the Rating Agency shall reasonably request and which the
Servicer or Special Servicer can reasonably provide in
183
accordance with applicable law and without waiving any attorney-client
privilege relating to such information. The Servicer and Special Servicer, as
applicable, may include any reasonable disclaimer it deems appropriate with
respect to such information.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
184
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized, in each
case as of the day and year first above written.
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.,
in its individual capacity and as
attorney-in-fact of the holder of the Pari
Passu Loan pursuant to the Pari Passu
Intercreditor Agreement
Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
S-1
BANC ONE MORTGAGE CAPITAL
MARKETS, LLC
Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
Title: Chief Operating Officer
S-2
AMRESCO MANAGEMENT, INC.
Special Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice-President
S-3
LASALLE NATIONAL BANK, not in its individual
capacity but as Trustee
Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice-President
ABN AMRO BANK N.V., not in its individual
capacity but as Fiscal Agent
Fiscal Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice-President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Vice-President
S-4
SCHEDULE 1
Mortgage Loans With Additional Debt
-----------------------------------
Loan Number Loan Name
----------- ---------
6310 Rockaway Industrial Complex
9119 Lomas Santa Fe
Sched. 1-1
SCHEDULE 2
Interest-Only Mortgaged Loans
-----------------------------
Loan Number Loan Name
----------- ---------
6072 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Center
Sched. 2-1
SCHEDULE 3
Mortgage Loans Without Defeasance Provisions
--------------------------------------------
Loan Number Loan Name
----------- ---------
6100 Mission Marketplace
6008 Naples Beach Hotel & Golf Club
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ 1564 Broadway/The Palace Theatre
9121 Torrey Reserve ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Center
8785 ▇▇▇▇'▇ Plaza Shopping Center
8489 Computer Science Corp.
6101 Carmel Country
6204 Biltmore Hotel & Suites
6430 Rio Entertainment Center
6151 Lincoln Park Shopping Center
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Shopping Center
8976 701-709 Madison Avenue
8587 The L.A. Mart
▇▇▇▇ ▇▇▇▇▇▇▇▇ Field Shopping Center
6233 Park Plaza on Maine
5615 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5828 ▇▇▇▇▇▇▇ Medical Plaza
6310 Rockaway Industrial Complex
9333 Brynwood Apartments
9114 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ Mobile Home Park
9495 Creekview Shopping Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
6072 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
8669 Prestige MHP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Mobile Home Park
5610 Enterprise Business Center
9371 The Beacon School
9326 Baywood Apts
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Sched. 3-1
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6070 ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ Industrial Facility
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Self Storage
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9277 ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
9329 ▇▇▇▇▇ ▇▇▇▇▇▇▇
6234 Plan Hold Corporation
8874 ▇▇▇▇▇▇ Properties
▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Condominiums
8597 Rosewood Apartments
9669 ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
9014 Crossroads Business Center
5981 Blue Island Industrial Terminal
6388 206 & ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
5914 The Boylston Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
6378 University Mall
9497 Cedar South Shopping Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
6016 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
9002 ▇▇▇▇▇▇ Center Apartments
9213 1401-1407 Kings ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Properties
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Mini Storage
6557 Via ▇▇▇▇
6266 Holiday Inn Express
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shopping
8462 Bellevue Apartments
6017 Sea Bay Inn (Best Western)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
9173 Sakellaris Apartments
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4950 ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Corner
5596 San Marco Apartments
6365 American Press Building
Sched. 3-2
8672 Northrups MHP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Apartments
6027 4400 Coldwater
9025 LA Times Parking
6102 Santa Fe
6042 21 Industrial
9488 ICW-Encino
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6221 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
9073 Lion ▇▇▇▇▇ Shopping Center
5483 62 West 45th Street
6146 Asia Bank Building
9423 Federal Express II
6347 Park 16
6028 Yucca
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office Buildings
6116 Harvard Apartments
9489 ICW-Walnut Creek
9330 Fairway Apartments
6225 ▇▇▇▇▇ Loft Apartments
6383 Spectrum Office & Technology Park
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ Apartments
5915 Cambridge Realty Trust
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Hotel
6190 ▇▇▇▇▇▇ IV
6284 Aero Park
9365 Kmart
6059 Tigard Retail Center
6236 Southtrust Bank Building
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ MHP
6237 Los Osos Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Eye Surgery Institute
8749 Le Colonial
8574 Comfort Inn - Big Spring
8466 304 East 89 Street
6238 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Family
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Plaza Blockbuster/Subway
6239 HCR Properties
Sched. 3-3
SCHEDULE 4
Interest Reserve Loans
-----------------------
Loan Name Loan Number
--------- -----------
Lincoln Park Shopping Center 6151
The Boylston Trust 5914
Cambridge Realty Trust ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ V 6191
▇▇▇▇▇▇ I 6187
206 & ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 5535
▇▇▇▇▇▇▇ Medical Plaza 5828
Biltmore Hotel & Suites 6204
Campus & Varsity Apartments 6599
Torrey Reserve South Court ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Mini Storage 9210
▇▇▇▇▇▇ III 6189
▇▇▇▇ ▇▇▇▇▇ Center 6605
ICW-Walnut Creek 9489
▇▇▇▇▇▇ Apartments ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9119
White Road Plaza 9115
Sched. ▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 9123
ICW-Encino 9488
Bellevue Apartments ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Apartments 9333
▇▇▇▇▇▇ River Apartments ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ Apartments 9330
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Office and Retail Portfolio 6161
Oak Bridge Condominiums 8666
▇▇▇▇▇ ▇▇▇▇▇▇▇ 9329
Sched. 4-2
EXHIBIT A-1
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &, CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.34% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $ BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
A-1-1
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1 CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $129,564,000
CERTIFICATE NO.:
============================================================ ====================================================================
A-1-2
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-C1 and are issued in fifteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will
evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.
A-1-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred
A-1-4
Interest on the Mortgage Loans allocated to any Class of Certificates will be
allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
A-1-5
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the
A-1-6
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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder" in the Pooling and Servicing Agreement, and
none of the Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent, the Certificate Registrar and any agent of any of them shall be
affected by notice to the contrary except as provided in Section 5.02(d) of the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect,
A-1-7
and (b) such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be
subject to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior
A-1-8
notice given to the Trustee, Paying Agent and each of the other parties to the
Pooling and Servicing Agreement (which notice the Paying Agent is required to
promptly forward to Certificateholders and Rating Agencies in the manner set
forth in the Pooling and Servicing Agreement), the Controlling Class
Certificateholder holding the largest aggregate Certificate Balance of the
Controlling Class (the "Largest Controlling Class Certificateholder") may
purchase all, but not less than all, of the Mortgage Loans and REO Properties
in the Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates. If the Largest Controlling
Class Certificateholder does not exercise such purchase option, then the
Servicer may purchase all of the Mortgage Loans that are not Specially Serviced
Mortgage Loans and the Special Servicer may purchase all of the Specially
Serviced Mortgage Loans and REO Properties. If the Largest Controlling Class
Certificateholder does not exercise such purchase option and all of the
remaining Mortgage Loans, Specially Serviced Mortgage Loans and REO Properties
are not purchased by the Servicer and the Special Servicer pursuant to their
respective options, then the holder of the Class LR Certificates may purchase
such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: __________________________
AUTHORIZED SIGNATORY
A-1-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - __________ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act____________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto____________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-1-11
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number __________________________________
or, if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &, CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.44% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $ BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
A-2-1
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $417,211,428
CERTIFICATE NO.:
============================================================ ====================================================================
A-2-2
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-C1 and are issued in fifteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will
evidence in the aggregate 100% of the beneficial ownership of the Trust Fund.
A-2-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred
A-2-4
Interest on the Mortgage Loans allocated to any Class of Certificates will be
allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
A-2-5
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the
A-2-6
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 the purpose
of receiving distributions pursuant to Section 4.01 of the Pooling and
Servicing Agreement and for all other purposes whatsoever, except as and to the
extent provided in the definition of "Certificateholder" in the Pooling and
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect,
A-2-7
and (b) such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be
subject to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior
A-2-8
notice given to the Trustee, Paying Agent and each of the other parties to the
Pooling and Servicing Agreement (which notice the Paying Agent is required to
promptly forward to Certificateholders and Rating Agencies in the manner set
forth in the Pooling and Servicing Agreement), the Controlling Class
Certificateholder holding the largest aggregate Certificate Balance of the
Controlling Class (the "Largest Controlling Class Certificateholder") may
purchase all, but not less than all, of the Mortgage Loans and REO Properties
in the Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates. If the Largest Controlling
Class Certificateholder does not exercise such purchase option, then the
Servicer may purchase all of the Mortgage Loans that are not Specially Serviced
Mortgage Loans and the Special Servicer may purchase all of the Specially
Serviced Mortgage Loans and REO Properties. If the Largest Controlling Class
Certificateholder does not exercise such purchase option and all of the
remaining Mortgage Loans, Specially Serviced Mortgage Loans and REO Properties
are not purchased by the Servicer and the Special Servicer pursuant to their
respective options, then the holder of the Class LR Certificates may purchase
such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: _______________________
AUTHORIZED SIGNATORY
A-2-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT -___________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto__________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-2-11
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ______________________________ or,
if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &, CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
A-3-1
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.54% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $ BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $35,736,956
CERTIFICATE NO.:
============================================================ ====================================================================
A-3-2
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-3-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-3-4
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-3-5
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-3-6
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-3-7
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-3-8
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:________________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-3-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto_______________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-3-11
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number
______________________________________ or, if mailed by check, to
_____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &, CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
A-4-1
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.75% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $ BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $32,163,260
CERTIFICATE NO.:
============================================================ ====================================================================
A-4-2
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-4-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-4-4
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-4-5
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-4-6
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-4-7
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-4-8
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-4-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - _________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto_________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-4-11
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number
___________________________________ or, if mailed by check, to
_____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &, CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
A-5-1
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.75% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $ BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $32,163,260
CERTIFICATE NO.:
============================================================ ====================================================================
A-5-2
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-5-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-5-4
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-5-5
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-5-6
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-5-7
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-5-8
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-5-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - _________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto_________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-5-11
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number
___________________________________ or, if mailed by check, to
_____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &, CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
A-6-1
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.75% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $ BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $8,934,239
CERTIFICATE NO.:
============================================================ ====================================================================
A-6-2
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-6-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-6-4
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-6-5
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-6-6
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-6-7
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-6-8
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-6-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT -____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act____________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto_______________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-6-11
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ______________________________ or,
if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN
SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE
A-7-1
OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE
PORTION OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF
COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES
A-7-2
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: SET FORTH ON SCHEDULE A BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $12,507,935
CERTIFICATE NO.:
============================================================ ====================================================================
A-7-3
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-7-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-7-5
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-7-6
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-7-7
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-7-8
(other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-7-9
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ____________________
AUTHORIZED SIGNATORY
A-7-11
SCHEDULE A
================================= -------------------------------- ----------------------------- ===============================
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= ================================ ============================= ===============================
================================= ================================ ============================= ===============================
A-7-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT -___________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-7-13
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number __________________________________
or, if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN
SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE
A-8-1
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES
A-8-2
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: SET FORTH ON SCHEDULE A BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $12,507,935
CERTIFICATE NO.:
============================================================ ====================================================================
A-8-3
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-8-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-8-5
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-8-6
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-8-7
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-8-8
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-8-9
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-8-11
SCHEDULE A
================================= -------------------------------- ----------------------------- ===============================
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= ================================ ============================= ===============================
================================= ================================ ============================= ===============================
A-8-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - _____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act____________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-8-13
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number __________________________________
or, if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN
SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE
A-9-1
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES
A-9-1
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: SET FORTH ON SCHEDULE A BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $5,360,543
CERTIFICATE NO.:
============================================================ ====================================================================
A-9-3
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-9-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-9-5
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-9-6
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-9-7
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
A-9-8
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-9-9
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: _____________________
AUTHORIZED SIGNATORY
A-9-11
SCHEDULE A
================================= -------------------------------- ----------------------------- ===============================
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= ================================ ============================= ===============================
================================= ================================ ============================= ===============================
A-9-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - _____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, though not in the
above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-9-13
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number __________________________________
or, if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-9-14
EXHIBIT A-10
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS I
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN
SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS I CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE
A-10-1
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES
A-10-2
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: SET FORTH ON SCHEDULE A BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS I CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $17,868,478
CERTIFICATE NO.:
============================================================ ====================================================================
A-10-3
CLASS I CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class I Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class I
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-10-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class I Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-10-5
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-10-6
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-10-7
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-10-8
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-10-9
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:________________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-10-11
SCHEDULE A
================================= -------------------------------- ----------------------------- ===============================
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= ================================ ============================= ===============================
================================= ================================ ============================= ===============================
A-10-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT -_____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act____________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-10-13
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number __________________________________
or, if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-10-14
EXHIBIT A-11
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN
SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE
A-11-1
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES
A-11-2
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: SET FORTH ON SCHEDULE A BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $4,645,804
CERTIFICATE NO.:
============================================================ ====================================================================
A-11-3
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-11-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-11-5
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-11-6
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-11-7
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-11-8
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-11-9
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:________________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-11-11
SCHEDULE A
================================= -------------------------------- ----------------------------- ===============================
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= ================================ ============================= ===============================
================================= ================================ ============================= ===============================
A-11-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act____________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-11-13
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number __________________________________
or, if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-11-14
EXHIBIT A-12
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN
SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE
A-12-1
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING
THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF
THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR
A-12-2
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
============================================================ ====================================================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
-----------------------------------
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: SET FORTH ON SCHEDULE A BEFORE CUT-OFF DATE:
$
============================================================ ====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
1998
============================================================ ====================================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
============================================================ ====================================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
============================================================ ====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
============================================================ ====================================================================
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE CLASS K CUSIP NO.
CERTIFICATES AS OF THE CLOSING DATE: $6,075,283
CERTIFICATE NO.:
============================================================ ====================================================================
A-12-3
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-12-4
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate which shall equal the lesser of (x) the fixed rate per annum specified
above on the Certificate Balance of this Certificate and (y) the weighted
average of the Net Mortgage Rates of the Mortgage Loans (such Net Mortgage
Rates determined without taking into account any reductions thereto resulting
from modifications of the Mortgage Loans or otherwise following the Cut-Off
Date), immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-12-5
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
A-12-6
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Certificate Balance of such Class. The Class R
and Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever,
A-12-7
except as and to the extent provided in the definition of "Certificateholder"
in the Pooling and Servicing Agreement, and none of the Depositor, the Trustee,
the Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders
A-12-8
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
A-12-9
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:________________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-12-11
SCHEDULE A
================================= -------------------------------- ----------------------------- ===============================
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= -------------------------------- ----------------------------- ===============================
================================= ================================ ============================= ===============================
================================= ================================ ============================= ===============================
A-12-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - _____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act____________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, though not in the
above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-12-13
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number __________________________________
or, if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-12-14
EXHIBIT A-13
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS X
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRASNFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE OF THIS CERTIFICATE IN DEFINITIVE
FORM IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS X
CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
A-13-1
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR") WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF
WHICH COME WITHIN SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
=========================================================== =====================================================================
INITIAL PASS-THROUGH RATE: 0.7993% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$
SERVICER: BANK ONE MORTGAGE CAPITAL MARKETS, LLC
=========================================================== =====================================================================
DENOMINATION: $____________ SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
=========================================================== =====================================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, TRUSTEE: LASALLE NATIONAL BANK
1998
=========================================================== =====================================================================
CUT-OFF DATE: JUNE 1, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
=========================================================== =====================================================================
CLOSING DATE: JUNE 29, 1998 PAYING AGENT: LASALLE NATIONAL BANK
=========================================================== =====================================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 CUSIP NO.
=========================================================== =====================================================================
APPROXIMATE AGGREGATE NOTIONAL AMOUNT OF THE CLASS [X] CERTIFICATE NO.:
CERTIFICATES AS OF THE CLOSING DATE: $714,739,121
=========================================================== =====================================================================
A-13-2
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class X Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Notional Amount of the Class X
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-13-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate)
of that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be
entitled to Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date in an amount equal to the sum
of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, C-E Component Interest
Accrual Amount and the WAC Component Interest Accrual Amount immediately prior
to such Distribution Date which shall be equal to the excess, if any, of (i)
the weighted average of the Net Mortgage Rates of the Mortgage Loans as of the
immediately preceding Distribution Date after giving effect to distributions of
principal on such Distribution Date, over (ii) the weighted average of the
Pass-Through Rates of the other Classes of Certificates (other than the
Residual Certificates). Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the Available Distribution Amount to be distributed on the Certificates of
this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in
A-13-4
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account will be held and maintained by the Servicer
in the name of the Trustee on behalf of the holders of the Certificates
specified in the Pooling and Servicing Agreement and the Servicer will be
authorized to make withdrawals therefrom and the Distribution Accounts will be
held and maintained by the Trustee on behalf of the holders of the Certificates
and the Trustee (and in certain instances, the Servicer) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account and Distribution Accounts will be paid to the Servicer as
set forth in the Pooling and Servicing Agreement. As provided in the Pooling
and Servicing Agreement, withdrawals from the Certificate Account shall be made
from time to time for purposes other than distributions to Certificateholders,
such purposes including reimbursement of certain expenses incurred with respect
to the servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part
A-13-5
(with a denomination equal to any authorized denomination) by surrendering such
Certificate at the Registrar Office or at the office of any successor
Certificate Registrar or transfer agent appointed by the Certificate Registrar
together with an instrument of transfer, duly endorsed by, or accompanied by an
assignment in the form set forth below or other written instrument of transfer
in form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney-in-fact duly authorized in writing, in the
case of a transfer, and a written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement, the Class
X Certificates will be issued in book-entry form through the facilities of DTC
in minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in minimum
Denominations of $25,000 initial Certificate Balance, and in integral multiples
of $1,000 in excess thereof, with one Certificate of each such Class evidencing
an additional amount equal to the remainder of the initial Certificate Balance
of such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class X Certificates and the
Residual Certificates) will be issued in fully registered, certificated form,
in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. The Class R and Class
LR Certificates will be issuable only in one or more Definitive Certificates in
denominations representing Percentage Interests of not less than 25%.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder" in the Pooling and Servicing Agreement, and
none of the Depositor, the Trustee, the Servicer, the Special Servicer,
A-13-6
the Paying Agent, the Certificate Registrar and any agent of any of them shall
be affected by notice to the contrary except as provided in Section 5.02(d) of
the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
A-13-7
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may
A-13-8
purchase all, but not less than all, of the Mortgage Loans and REO Properties
in the Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates. If the Largest Controlling
Class Certificateholder does not exercise such purchase option, then the
Servicer may purchase all of the Mortgage Loans that are not Specially Serviced
Mortgage Loans and the Special Servicer may purchase all of the Specially
Serviced Mortgage Loans and REO Properties. If the Largest Controlling Class
Certificateholder does not exercise such purchase option and all of the
remaining Mortgage Loans, Specially Serviced Mortgage Loans and REO Properties
are not purchased by the Servicer and the Special Servicer pursuant to their
respective options, then the holder of the Class LR Certificates may purchase
such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity
but solely as Trustee
under the Pooling and
Servicing Agreement.
By:_______________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-13-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT -____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act_____________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto__________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-13-11
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ______________________________ or,
if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-13-12
EXHIBIT A-14
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, SUBJECT TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON INVESTING THE
ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
A-14-1
SECTIONS 860G(A)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY,
AS SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT.
================================================================= ==============================================================
PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: ___% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
$
================================================================= ==============================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 1998 SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
================================================================= ==============================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
================================================================= ==============================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
================================================================= ==============================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
================================================================= ==============================================================
CLASS R PERCENTAGE INTEREST: ___% PAYING AGENT: LASALLE NATIONAL BANK
================================================================= ==============================================================
CERTIFICATE NO.:
================================================================= ==============================================================
A-14-2
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class R
Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-14-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class
R Certificates shall be designated, in the in the manner provided under
Treasury Regulations Section 1.860F-4(d) and temporary Treasury Regulations
Section 301.6231(a)(7)-1T, as the "tax matters person" of the Upper-Tier REMIC.
By their acceptance thereof, the Holders of the largest Percentage Interest of
the Class R Certificates hereby agrees irrevocably to appoint the Trustee as
their agent to perform all of the duties of the "tax matters person" for the
Upper-Tier REMIC.
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and
Servicing Agreement, on the Distribution Date to the Person in whose name this
Certificate is registered as of the related Record Date. All sums distributable
on this Certificate are payable in the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
A-14-4
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Each Person who has or who acquires any Ownership Interest in a Class
R 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 Paying Agent under Section 5.02(d) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring
A-14-5
any Ownership Interest in a Class R Certificate shall be a Disqualified
Organization or agent thereof (including a nominee, middleman or similar
person) (an "Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and shall promptly notify the Servicer, the Trustee and the
Certificate Registrar of any change or impending change to such status; (B) In
connection with any proposed Transfer of any Ownership Interest in a Class R
Certificate, the Certificate Registrar shall require delivery to it, and no
Transfer of any Class R Certificate shall be registered until the Certificate
Registrar receives, an affidavit substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit") from
the proposed Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be
bound by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if the Certificate Registrar has
actual knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class R Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class R Certificate and (2) not to
transfer its Ownership Interest in such Class R Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Notional Amount of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
A-14-6
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder" in the Pooling and Servicing Agreement, and
none of the Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent, the Certificate Registrar and any agent of any of them shall be
affected by notice to the contrary except as provided in Section 5.02(d) of the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
A-14-7
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
A-14-8
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
A-14-9
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:________________________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: __________________________
AUTHORIZED SIGNATORY
A-14-11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - __________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto______________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-14-12
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ______________________________ or,
if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-14-13
EXHIBIT A-15
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-C1, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, SUBJECT TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON INVESTING THE
ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS
A-15-1
AMENDED. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED
TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY, AS SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT.
================================================================= ==============================================================
PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: ___% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
$
================================================================= ==============================================================
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE 1, 1998 SERVICER: BANC ONE MORTGAGE CAPITAL MARKETS, LLC
================================================================= ==============================================================
CUT-OFF DATE: JUNE 1, 1998 SPECIAL SERVICER: AMRESCO MANAGEMENT, INC.
================================================================= ==============================================================
CLOSING DATE: JUNE 29, 1998 TRUSTEE: LASALLE NATIONAL BANK
================================================================= ==============================================================
FIRST DISTRIBUTION DATE: JULY 16, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
================================================================= ==============================================================
CLASS LR PERCENTAGE INTEREST: ___% PAYING AGENT: LASALLE NATIONAL BANK
================================================================= ==============================================================
CERTIFICATE NO.:
================================================================= ==============================================================
A-15-2
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting
primarily of a pool of fixed rate, commercial, multifamily and mobile home
community mortgage loans (the "Mortgage Loans"), all payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date, all REO Properties
and revenues received in respect thereof, the mortgagee's rights under the
Insurance Policies, any Assignment of Leases, and any guaranties, escrow
accounts or other collateral as security for the Mortgage Loans, and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, and the REO Accounts, formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR
▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ________________________________
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), LaSalle National Bank, as Trustee
(the "Trustee"), AMRESCO Management, Inc., as special servicer (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
LR Certificates. The Certificates are designated as the Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1 and are issued in fifteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
A-15-3
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class
LR Certificates shall be designated, in the in the manner provided under
Treasury Regulations Section 1.860F-4(d) and temporary Treasury Regulations
Section 301.6231(a)(7)-1T, as the "tax matters person" of the Lower-Tier REMIC.
By their acceptance thereof, the Holders of the largest Percentage Interest of
the Class LR Certificates hereby agrees irrevocably to appoint the Trustee as
their agent to perform all of the duties of the "tax matters person" for the
Lower-Tier REMIC.
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and
Servicing Agreement, on the Distribution Date to the Person in whose name this
Certificate is registered as of the related Record Date. All sums distributable
on this Certificate are payable in the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all
as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will
be held and maintained by the Servicer in the name of the Trustee on behalf of
the holders of the Certificates specified in the Pooling and Servicing
Agreement and the Servicer will be authorized to make withdrawals therefrom and
the Distribution Accounts will be held and maintained by the Trustee on behalf
of the holders of the Certificates and the Trustee (and in certain instances,
the Servicer) will be authorized to make withdrawals therefrom. Amounts on
deposit in such accounts may be invested in Permitted Investments. Interest or
other income earned on funds in the Certificate Account and Distribution
Accounts will be paid to the Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
A-15-4
All distributions under the Pooling and Servicing Agreement to a Class
of Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity
having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining 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 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 Certificateholder shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee or the Paying Agent as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar together with an instrument of
transfer, duly endorsed by, or accompanied by an assignment in the form set
forth below or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney-in-fact duly authorized in writing, in the case of a transfer, and a
written request for exchange in the case of exchange.
Each Person who has or who acquires any Ownership Interest in a Class
LR 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 Paying Agent under Section 5.02(d) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class
LR Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring
A-15-5
any Ownership Interest in a Class LR Certificate shall be a Disqualified
Organization or agent thereof (including a nominee, middleman or similar
person) (an "Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and shall promptly notify the Servicer, the Trustee and the
Certificate Registrar of any change or impending change to such status; (B) In
connection with any proposed Transfer of any Ownership Interest in a Class LR
Certificate, the Certificate Registrar shall require delivery to it, and no
Transfer of any Class LR Certificate shall be registered until the Certificate
Registrar receives, an affidavit substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit") from
the proposed Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be
bound by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if the Certificate Registrar has
actual knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities
of DTC in minimum Denominations of $1,000,000 initial Notional Amount and in
integral multiples of $1,000 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Non-Registered Certificates (other than the Class X
Certificates and the Residual Certificates) will be issued in fully registered,
certificated form, in minimum denominations of initial Certificate Balance of
not less than $250,000 and in integral multiples of $1,000 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal
to the remainder of the initial Notional Amount of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less
than 25%.
A-15-6
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange
referred to in Section 5.02 of the Pooling and Servicing Agreement other than
as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust
Fund for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and 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 the purpose of receiving distributions
pursuant to Section 4.01 of the Pooling and Servicing Agreement and for all
other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder" in the Pooling and Servicing Agreement, and
none of the Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent, the Certificate Registrar and any agent of any of them shall be
affected by notice to the contrary except as provided in Section 5.02(d) of the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time to time
by the parties hereto, without the consent of any of the Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to correct any
error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i) the
Trustee has received an Opinion of Counsel to the effect that (a) such
action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests
of any Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
A-15-7
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided that (a) the Servicer Remittance Date shall in no event be
later than the related Distribution Date, (b) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests,"; provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any Certificateholder not
consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from time to
time by the parties hereto with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
A-15-8
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the
effect that such amendment or the exercise of any power granted to the
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent or
any other specified person in accordance with such amendment, will not result
in the imposition of a tax on the REMIC constituted by the Trust Fund or cause
the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to
qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not
exercise such purchase option and all of the remaining Mortgage Loans,
Specially Serviced Mortgage Loans and REO Properties are not purchased by the
Servicer and the Special Servicer pursuant to their respective options, then
the holder of the Class LR Certificates may purchase such assets then included
in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement will
terminate upon payment (or provision for payment) to all Certificateholders of
all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer,
the Special Servicer, the holders of the Controlling Class or the holders of
the Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
A-15-9
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Trustee has executed this Certificate on behalf of the
Trust Fund as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not
in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:________________________________
AUTHORIZED OFFICER
Dated: _______________, 1998
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: __________________________
AUTHORIZED SIGNATORY
A-15-11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____________Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act___________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto_______________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-15-12
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ______________________________ or,
if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-15-13
EXHIBIT B
MORTGAGE LOAN SCHEDULE
LOAN NUMBER LOAN NAME PROPERTY NAME
-------------------------------------------------------------------------------------------------------------------
6100 Mission Marketplace Mission Marketplace
6008 Naples Beach Hotel & Golf Club Naples Beach Hotel & Golf Club
-------------------------------------------------------------------------------------------------------------------
9671 - 9675 RETAIL PORTFOLIO
9671 Retail Portfolio - Interchange Square Retail Portfolio - Interchange Square
9672 Retail Portfolio - Mountainview Square Retail Portfolio - Mountainview Square
9673 Retail Portfolio - ▇▇▇▇▇ Village Retail Portfolio - ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇. Retail Portfolio - Eastland Sq.
9675 Retail Portfolio - Swansea Crossing Retail Portfolio - Swansea Crossing
-------------------------------------------------------------------------------------------------------------------
9119 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ 1564 Broadway/The Palace Theatre ▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇ ▇▇▇▇▇▇ Theatre
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Reserve South Court
9115 White Road Plaza White Road Plaza
-------------------------------------------------------------------------------------------------------------------
6605 ▇▇▇▇ ▇▇▇▇▇ Center ▇▇▇▇ ▇▇▇▇▇ Center
8785 ▇▇▇▇'▇ Plaza Shopping Center ▇▇▇▇'▇ Plaza Shopping Center
8489 Computer Science Corp. Computer Science Corp.
6101 Carmel Country Carmel Country
6204 Biltmore Hotel & Suites Biltmore Hotel & Suites
-------------------------------------------------------------------------------------------------------------------
6430 Rio Entertainment Center Rio Entertainment Center
6151 Lincoln Park Shopping Center Lincoln Park Shopping Center
5005 Back Bay Manor Back Bay Manor
5351 Clairemont Village Shopping Center Clairemont Village Shopping Center
8976 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
8587 The L.A. Mart The L.A. Mart
5857 ▇▇▇▇▇▇▇▇ Field Shopping Center ▇▇▇▇▇▇▇▇ Field Shopping Center
-------------------------------------------------------------------------------------------------------------------
5995 FEDERAL EXPRESS BUILDINGS I
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Federal Express ▇▇▇▇▇▇▇▇▇ ▇- ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Federal Express Buildings I - North Haven, CT
6233 Park Plaza on Maine Park Plaza on Maine
-------------------------------------------------------------------------------------------------------------------
5237 ▇▇▇▇▇▇▇ WAREHOUSE PORTFOLIO
5237a ▇▇▇▇▇▇▇ Warehouse - 680 Basket
5237b ▇▇▇▇▇▇▇ Warehouse - 2 Potomac
5237c ▇▇▇▇▇▇▇ Warehouse - 691 ▇▇▇▇▇▇▇▇
5237d ▇▇▇▇▇▇▇ Warehouse - ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
5615 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
6082 Continental ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Medical Plaza
6310 Rockaway Industrial Complex Rockaway Industrial Complex
9333 Brynwood Apartments Brynwood Apartments
-------------------------------------------------------------------------------------------------------------------
9114 The Coast Distributing ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ Mobile Home Park Plaza Del Sol Mobile Home Park
9495 Creekview Shopping Center Creekview Shopping Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
6072 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇ Second Avenue
8669 Prestige MHP Prestige MHP
6386 Parking Palace Parking Palace
-------------------------------------------------------------------------------------------------------------------
9204 365 & ▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇.
9204b ▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
9306 Sunshine Valley Mobile Home Park Sunshine Valley Mobile Home Park
5610 Enterprise Business Center Enterprise Business Center
9371 The Beacon School The Beacon School
9326 Baywood Apts Baywood Apts
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ Industrial Facility OECO Industrial Facility
9332 ▇▇▇▇▇▇ River Apartments ▇▇▇▇▇▇ River Apartments
6414 North Shore Self Storage North Shore Self Storage
-------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9277 ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
9329 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
6234 Plan Hold Corporation Plan Hold Corporation
-------------------------------------------------------------------------------------------------------------------
8874 ▇▇▇▇▇▇ Properties ▇▇▇▇▇▇ Properties
5632 ▇▇▇▇'▇ Cove VI ▇▇▇▇'▇ Cove VI
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Condominiums
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Apartments
9669 ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Shopping Ctr. Richfield Plaza Shopping Ctr.
-------------------------------------------------------------------------------------------------------------------
6161 BENDERSON OFFICE AND RETAIL PORTFOLIO
6161a Benderson - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
6161b Benderson - 3190 Niagara
6161c Benderson - 621 Delaware
6161d Benderson - 600 Delaware
-------------------------------------------------------------------------------------------------------------------
5981 Blue Island Industrial Terminal Blue Island Industrial Terminal
6388 206 & ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ & ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
5914 The Boylston Trust The Boylston Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
6378 University Mall University Mall
-------------------------------------------------------------------------------------------------------------------
9497 Cedar South Shopping Center Cedar South Shopping Center
6461 Crown Industrial Park Crown Industrial Park
6382 ▇▇▇▇▇▇▇▇ Business Park ▇▇▇▇▇▇▇▇ Business Park
6016 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
9002 ▇▇▇▇▇▇ Center Apartments ▇▇▇▇▇▇ Center Apartments
-------------------------------------------------------------------------------------------------------------------
9213 1401-1407 Kings ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Properties Grant Road Properties
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Place
-------------------------------------------------------------------------------------------------------------------
6599 CAMPUS & VARSITY APARTMENTS
6599a Campus Apartments
6599b Varsity Apartments
9210 Tallahassee Mini Storage Tallahassee Mini Storage
6557 Via ▇▇▇▇ Via ▇▇▇▇
6266 Holiday Inn Express Holiday Inn Express
-------------------------------------------------------------------------------------------------------------------
5876 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ Procyon
5876b Rousso Portfolio - 4560 - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shopping Macungie Square Shopping
8462 Bellevue Apartments Bellevue Apartments
6017 Sea Bay Inn (Best Western) Sea Bay Inn (Best Western)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Marketplace
-------------------------------------------------------------------------------------------------------------------
9173 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇
▇▇▇▇▇ Sakellaris Apartments - Commonwealth
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4950 White ▇▇▇▇ ▇▇▇▇▇ Clay
3912 Blackstone Valley Place Blackstone Valley Place
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Seven Creek Parkway
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
5874 ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ PORTFOLIO
5874a Bel-Air
5874b ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Corner
5596 San Marco Apartments San Marco Apartments
6365 American Press Building American Press Building
8672 Northrups MHP Northrups MHP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
6638 Hobart Apartments Hobart Apartments
-------------------------------------------------------------------------------------------------------------------
6191 ▇▇▇▇▇▇ V
6191a ▇▇▇▇▇▇ V - ▇▇▇▇▇▇▇
6191b ▇▇▇▇▇▇ V - Dupont
6191c ▇▇▇▇▇▇ V - Colfax
6027 4400 Coldwater 4400 Coldwater
9025 LA Times Parking LA Times Parking
6102 Santa Fe Santa Fe
-------------------------------------------------------------------------------------------------------------------
5867 ▇▇▇▇▇▇ MHP PORTFOLIO
5867a ▇▇▇▇▇▇ - ▇▇▇ Meadow MHP
5867b ▇▇▇▇▇▇ - Somerlawn MHP
5867c ▇▇▇▇▇▇ - Wooded Acres MHP
6042 21 Industrial 21 Industrial
-------------------------------------------------------------------------------------------------------------------
9488 ICW-Encino ICW-Encino
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6221 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
9073 Lion ▇▇▇▇▇ Shopping Center Lion ▇▇▇▇▇ Shopping Center
5483 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
6146 Asia Bank Building Asia Bank Building
9423 Federal Express II Federal Express II
6347 Park 16 Park 16
6028 Yucca Yucca
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office Buildings
-------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ ICW-Walnut Creek
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments
-------------------------------------------------------------------------------------------------------------------
6187 ▇▇▇▇▇▇ I
6187a ▇▇▇▇▇▇ I - ▇▇▇▇▇▇
6187b ▇▇▇▇▇▇ I - Fremont
6187c ▇▇▇▇▇▇ I - 3447 Garfield
6187d ▇▇▇▇▇▇ I - ▇▇▇▇▇▇▇
6187e ▇▇▇▇▇▇ I - 3439/3446 Garfield
-------------------------------------------------------------------------------------------------------------------
6225 ▇▇▇▇▇ Loft Apartments ▇▇▇▇▇ Loft Apartments
6383 Spectrum Office & Technology Park Spectrum Office & Technology Park
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Realty Trust Cambridge Realty Trust
-------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Oaks Apartments
6235 Sandman Hotel Sandman Hotel
6190 ▇▇▇▇▇▇ IV ▇▇▇▇▇▇ IV
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Plaza
6284 Aero Park Aero Park
-------------------------------------------------------------------------------------------------------------------
9365 Kmart Kmart
6059 Tigard Retail Center Tigard Retail Center
6236 Southtrust Bank Building Southtrust Bank Building
5535 Nob Hill Business ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Carlo MHP Monte Carlo MHP
-------------------------------------------------------------------------------------------------------------------
6189 ▇▇▇▇▇▇ III
6189a ▇▇▇▇▇▇ III - Grand
6189b ▇▇▇▇▇▇ III - Colfax
6189c ▇▇▇▇▇▇ III - Pillsbury
6189d ▇▇▇▇▇▇ III - Hennipen
-------------------------------------------------------------------------------------------------------------------
6237 Los Osos Center Los Osos Center
8782 Leisure Pointe Apartments Leisure Pointe Apartments
6475 ▇▇▇▇ ▇▇▇▇ Eye Surgery Institute ▇▇▇▇ ▇▇▇▇ Eye Surgery Institute
8749 Le Colonial Le Colonial
8574 Comfort Inn - Big Spring Comfort Inn - Big Spring
-------------------------------------------------------------------------------------------------------------------
8466 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 304 East 89 Street
6238 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Family ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Family
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
6254 Woodmen Plaza Blockbuster/Subway Woodmen Plaza Blockbuster/Subway
6239 HCR Properties HCR Properties
TOTALS/WEIGHTED AVG.
ADDRESS CITY STATE ZIP CODE
---------------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
1851 & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇) ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
11452-11512 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
12720-12784 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Southfield Rd & ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Baltimore ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. & ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
NEC ▇▇▇▇▇▇ ▇▇▇▇. & ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
315,321 & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇ ▇) ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
1940, 1968 & ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Mustard, Breck, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
206 & ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. & 1-3 Choice Rd. Windsor Locks CT ▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
12-28 & ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
1857, 1859 & ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
West Side of Capital Circle, NE, south of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
2910, 2920, 2924, & ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
311,351,421,501 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
County Route 8 @ ▇▇▇▇▇▇ Cake Road Fulton NY 13069
Route 48 North Fulton NY ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
301&304 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇&▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, 148,156,160,164&172 ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
201-203 & ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇ & ▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
STATED
ORIGINAL REMAINING
GROSS NET CUT-OFF TERM TO TERM TO
MORTGAGE MORTGAGE ORIGINAL DATE MATURITY MATURITY
RATE RATE BALANCE BALANCE (MO.) (MO.)
------------------------------------------------------------------------
7.3650% 7.3100% $24,000,000 $23,912,270 180 175
6.9600% 6.9050% 23,000,000 22,913,783 120 117
------------------------------------------------------------------------
7.9450% 7.8900% 22,300,000 22,201,914 120 113
8.0100% 7.9550% 1,500,000 1,493,504 121 114
8.0100% 7.9550% 4,700,000 4,679,645 121 114
7.7600% 7.7050% 6,400,000 6,370,622 120 113
7.9700% 7.9150% 2,000,000 1,991,257 120 113
8.0400% 7.9850% 7,700,000 7,666,887 120 113
------------------------------------------------------------------------
6.9340% 6.8790% 21,400,000 21,386,351 180 179
7.3200% 7.2650% 17,000,000 17,000,000 120 120
7.0800% 7.0250% 16,000,000 16,000,000 120 120
6.8840% 6.8290% 15,750,000 15,739,803 180 179
6.9340% 6.8790% 14,500,000 14,490,752 180 179
------------------------------------------------------------------------
6.9200% 6.8650% 14,000,000 14,000,000 120 116
7.1100% 7.0300% 13,300,000 13,300,000 120 120
7.1200% 7.0650% 13,100,000 13,100,000 120 120
7.3650% 7.3100% 12,300,000 12,255,038 180 175
6.8700% 6.8150% 12,200,000 12,158,294 120 117
------------------------------------------------------------------------
7.1600% 7.1050% 12,000,000 11,992,857 180 179
6.4700% 6.4150% 12,000,000 11,969,867 120 118
6.8600% 6.8050% 11,000,000 10,947,831 180 174
7.3650% 7.3100% 10,300,000 10,262,346 180 175
7.0500% 6.9950% 10,000,000 10,000,000 120 120
7.5700% 7.5150% 10,000,000 10,000,000 120 120
7.2000% 7.1450% 9,950,000 9,950,000 120 120
------------------------------------------------------------------------
7.7300% 7.6750% 9,600,000 9,588,410 120 118
8.1250% 8.0700% 9,400,000 9,349,660 120 111
------------------------------------------------------------------------
7.3150% 7.2600% 9,100,000 9,066,374 120 115
------------------------------------------------------------------------
6.9900% 6.9350% 9,000,000 8,990,620 120 119
7.2400% 7.1850% 8,500,000 8,491,609 120 119
6.8600% 6.8050% 7,560,000 7,542,302 120 118
7.2200% 7.1650% 7,500,000 7,476,040 120 117
7.0050% 6.9250% 7,410,000 7,402,302 120 119
------------------------------------------------------------------------
6.9340% 6.8790% 7,000,000 6,995,535 180 179
7.3100% 7.2550% 7,000,000 6,990,596 180 178
7.2900% 7.2350% 6,750,000 6,750,000 120 120
7.1950% 7.1400% 6,750,000 6,645,382 180 175
7.6800% 7.6250% 6,500,000 6,500,000 120 120
------------------------------------------------------------------------
7.2200% 7.1650% 6,000,000 6,000,000 120 117
7.1800% 7.1250% 6,000,000 5,996,451 120 119
7.9500% 7.8950% 6,000,000 5,983,530 180 176
------------------------------------------------------------------------
7.3500% 7.2700% 5,900,000 5,900,000 120 120
------------------------------------------------------------------------
7.3100% 7.2550% 5,900,000 5,892,075 180 178
7.1000% 7.0450% 5,870,000 5,870,000 120 120
7.4700% 7.4150% 5,850,000 5,850,000 120 120
7.3000% 7.2450% 5,800,000 5,800,000 120 120
7.4700% 7.4150% 5,700,000 5,700,000 120 120
------------------------------------------------------------------------
7.5200% 7.4650% 5,400,000 5,400,000 120 120
7.3800% 7.3250% 5,350,000 5,350,000 120 120
7.4900% 7.4350% 5,175,000 5,164,222 120 118
7.0050% 6.9250% 5,070,000 5,070,000 120 120
7.3900% 7.3350% 5,037,224 5,020,347 118 115
------------------------------------------------------------------------
6.9340% 6.8790% 5,000,000 4,996,811 180 179
7.9000% 7.8450% 5,000,000 4,980,423 120 115
7.5900% 7.5350% 4,700,000 4,700,000 120 120
7.0550% 6.9750% 4,575,000 4,570,298 120 119
8.2500% 8.1950% 4,575,000 4,535,493 120 111
------------------------------------------------------------------------
7.1100% 7.0300% 4,520,000 4,520,000 120 120
7.3800% 7.3250% 4,500,000 4,483,604 120 115
7.0400% 6.9600% 4,400,000 4,393,682 120 118
7.0700% 7.0150% 4,300,000 4,300,000 120 120
7.5800% 7.5250% 4,275,000 4,275,000 120 120
7.7150% 7.6600% 4,250,000 4,250,000 120 120
7.2900% 7.2350% 4,250,000 4,250,000 120 120
------------------------------------------------------------------------
7.0000% 6.9450% 4,000,000 4,000,000 180 180
------------------------------------------------------------------------
7.7050% 7.6500% 4,000,000 3,992,003 120 118
6.8300% 6.7750% 3,900,000 3,895,795 180 179
6.7100% 6.6550% 3,850,000 3,829,912 120 116
7.4150% 7.3600% 3,800,000 3,765,673 180 175
7.4000% 7.3450% 3,700,000 3,682,675 120 116
------------------------------------------------------------------------
7.2900% 7.2350% 3,600,000 3,600,000 120 120
7.1200% 7.0650% 3,500,000 3,497,891 120 119
7.6000% 7.5450% 3,500,000 3,489,698 120 116
7.1700% 7.1150% 3,500,000 3,488,709 120 117
7.4600% 7.3800% 3,400,000 3,400,000 120 120
------------------------------------------------------------------------
7.6200% 7.5650% 3,340,000 3,336,972 120 119
7.7100% 7.6550% 3,150,000 3,130,201 120 114
7.0050% 6.9250% 3,112,000 3,108,767 120 119
------------------------------------------------------------------------
6.8700% 6.8150% 3,100,000 3,100,000 120 120
6.9100% 6.8550% 3,000,000 3,000,000 120 120
7.0500% 6.9950% 3,000,000 2,989,105 120 118
7.5300% 7.4750% 2,950,000 2,935,216 120 117
------------------------------------------------------------------------
7.6100% 7.5550% 2,940,000 2,929,812 120 115
7.8000% 7.7450% 2,860,000 2,858,621 120 119
6.9500% 6.8950% 2,800,000 2,795,891 120 118
7.4000% 7.3450% 2,700,000 2,700,000 120 120
7.4200% 7.3650% 2,700,000 2,700,000 120 120
------------------------------------------------------------------------
7.5200% 7.4400% 2,700,000 2,700,000 120 120
7.0000% 6.9200% 2,700,000 2,697,192 120 119
7.6200% 7.5400% 2,700,000 2,689,234 144 138
8.5578% 8.5028% 2,639,044 2,639,044 109 109
7.2200% 7.1400% 2,600,000 2,587,475 120 116
7.8300% 7.7750% 2,550,000 2,550,000 120 120
------------------------------------------------------------------------
7.2800% 7.2250% 2,550,000 2,547,505 120 119
7.9900% 7.9350% 2,550,000 2,545,176 120 118
7.3450% 7.2900% 2,500,000 2,485,721 120 115
7.4400% 7.3850% 2,450,000 2,442,506 120 117
7.2300% 7.1750% 2,400,000 2,400,000 120 120
7.7600% 7.7050% 2,310,000 2,310,000 120 120
6.9300% 6.8750% 2,300,000 2,295,122 120 117
------------------------------------------------------------------------
6.7610% 6.7060% 2,300,000 2,294,518 180 178
7.3000% 7.2450% 2,300,000 2,286,763 120 115
7.9940% 7.9390% 2,275,000 2,271,401 180 177
7.3650% 7.3100% 2,250,000 2,241,775 180 175
------------------------------------------------------------------------
7.3100% 7.2550% 2,150,000 2,143,252 120 117
7.1900% 7.1100% 2,100,000 2,093,252 120 117
------------------------------------------------------------------------
6.9340% 6.8790% 2,050,000 2,050,000 180 180
7.0800% 7.0250% 2,000,000 2,000,000 120 120
7.1800% 7.1250% 2,000,000 2,000,000 84 84
7.6300% 7.5750% 2,000,000 2,000,000 120 120
7.2100% 7.1550% 2,000,000 1,995,610 120 118
------------------------------------------------------------------------
7.7600% 7.7050% 1,990,000 1,986,631 120 117
7.6800% 7.6250% 1,950,000 1,950,000 120 120
8.0150% 7.9600% 1,950,000 1,947,015 84 82
7.2500% 7.1950% 1,950,000 1,942,693 120 115
6.9000% 6.8450% 1,925,000 1,925,000 120 120
------------------------------------------------------------------------
7.7026% 7.6476% 1,921,398 1,921,398 118 118
7.0300% 6.9750% 1,900,000 1,897,265 120 118
6.9200% 6.8650% 1,875,000 1,875,000 180 180
7.0050% 6.9250% 1,840,000 1,838,088 120 119
------------------------------------------------------------------------
6.7610% 6.7060% 1,800,000 1,795,710 180 178
------------------------------------------------------------------------
7.1400% 7.0850% 1,750,000 1,741,463 120 116
8.0500% 7.9950% 1,700,000 1,700,000 120 120
7.5100% 7.4550% 1,680,000 1,680,000 120 120
7.1900% 7.1350% 1,650,000 1,643,737 120 115
6.7100% 6.6550% 1,600,000 1,591,652 120 116
------------------------------------------------------------------------
6.7100% 6.6550% 1,600,000 1,589,915 180 178
9.1250% 9.0700% 1,600,000 1,562,449 180 171
7.2030% 7.1480% 1,550,000 1,550,000 180 180
7.7000% 7.6450% 1,510,000 1,506,978 120 118
7.4950% 7.4150% 1,500,000 1,498,076 120 118
------------------------------------------------------------------------
7.7800% 7.7250% 1,500,000 1,497,707 120 119
7.3100% 7.2550% 1,450,000 1,444,917 180 178
8.6250% 8.5700% 1,450,000 1,435,783 120 110
6.8600% 6.8050% 1,300,000 1,291,949 120 115
7.4400% 7.3850% 1,218,958 1,218,958 115 115
------------------------------------------------------------------------
6.9110% 6.8560% 1,210,000 1,207,194 180 178
------------------------------------------------------------------------
8.6250% 8.5700% 1,200,000 1,190,334 120 111
7.5100% 7.4550% 1,190,000 1,190,000 120 120
7.8250% 7.7700% 1,100,000 1,096,888 120 117
8.0400% 7.9600% 1,050,000 1,050,000 120 120
8.1500% 8.0950% 1,050,000 1,047,224 120 117
------------------------------------------------------------------------
7.2800% 7.2250% 1,035,000 1,031,732 120 117
8.6250% 8.5700% 1,015,000 1,010,833 120 112
7.6500% 7.5950% 1,000,000 997,068 120 117
7.4600% 7.4050% 1,000,000 996,566 180 178
9.8750% 9.8200% 789,750 774,546 180 172
7.2790% 7.2216% $716,143,374 $714,739,121 136 134
ANTICIPATED ORIGINAL FIRST
MATURITY REPAYMENT REVISED AMORTIZATION MONTHLY APPRAISED CUT-OFF
DATE DATE RATE TERM (MO.) PAYMENT VALUE DATE LTV
-------------------------------------------------------------------------------------
01/02/13 360 $165,599 $32,000,000 74.73%
03/01/08 300 161,973 63,200,000 36.26%
-------------------------------------------------------------------------------------
11/01/07 360 162,779 33,300,000 66.67%
12/01/07 360 11,017 3,000,000 49.78%
12/01/07 360 34,520 6,000,000 77.99%
11/01/07 360 45,895 8,600,000 74.08%
11/01/07 360 14,633 4,200,000 47.41%
11/01/07 360 56,715 11,500,000 66.67%
-------------------------------------------------------------------------------------
05/01/13 360 141,427 33,000,000 64.81%
06/01/08 360 116,778 23,800,000 71.43%
06/01/08 300 113,903 45,900,000 34.86%
05/01/13 360 103,561 24,700,000 63.72%
05/01/13 360 95,827 21,600,000 67.09%
-------------------------------------------------------------------------------------
02/01/08 360 80,733 25,400,000 55.12%
06/01/08 300 94,937 18,200,000 73.08%
06/01/08 360 88,213 18,300,000 71.58%
01/02/13 360 84,869 17,000,000 72.09%
03/01/08 300 85,218 40,200,000 30.24%
-------------------------------------------------------------------------------------
05/01/13 360 81,130 29,300,000 40.93%
04/01/08 300 80,800 19,350,000 61.86%
12/01/12 360 72,152 23,500,000 46.59%
01/01/13 360 71,070 15,300,000 67.07%
06/01/08 300 70,997 15,900,000 62.89%
06/01/08 300 74,355 37,950,000 26.35%
06/01/08 300 71,599 15,900,000 62.58%
-------------------------------------------------------------------------------------
04/01/08 4/1/08 9.7300% 360 68,643 12,475,000 76.86%
5,325,000 76.90%
2,125,000 68.15%
5,025,000 80.50%
09/01/07 360 69,795 11,750,000 79.57%
-------------------------------------------------------------------------------------
01/01/08 360 62,480 13,300,000 68.17%
1,900,000 74.72%
2,200,000 73.59%
1,900,000 57.68%
7,300,000 67.56%
-------------------------------------------------------------------------------------
05/01/08 300 63,553 15,500,000 58.00%
05/01/08 300 61,384 13,200,000 64.33%
04/01/08 300 52,759 10,500,000 71.83%
03/01/08 300 54,066 10,000,000 74.76%
05/01/08 300 52,396 9,675,000 76.51%
-------------------------------------------------------------------------------------
05/01/13 360 46,261 10,000,000 69.96%
04/01/13 360 48,038 10,500,000 66.58%
06/01/08 360 46,230 9,000,000 75.00%
01/01/13 180 61,409 12,000,000 55.38%
06/01/08 360 46,253 9,000,000 72.22%
-------------------------------------------------------------------------------------
03/01/08 336 36,100 7,800,000 76.92%
05/01/08 360 40,646 7,600,000 78.90%
02/01/13 360 43,817 8,150,000 73.42%
-------------------------------------------------------------------------------------
06/01/08 360 40,649 8,290,000 71.17%
4,850,000 70.62%
3,440,000 71.95%
-------------------------------------------------------------------------------------
04/01/13 360 40,488 8,500,000 69.32%
06/01/08 300 41,863 9,200,000 63.80%
06/01/08 300 43,117 8,500,000 68.82%
06/01/08 360 39,763 8,060,000 71.96%
06/01/08 360 39,738 8,500,000 67.06%
-------------------------------------------------------------------------------------
06/01/08 360 37,832 7,300,000 73.97%
06/01/08 300 39,119 8,300,000 64.46%
04/01/08 300 38,209 7,150,000 72.23%
06/01/08 300 35,850 8,000,000 63.38%
01/01/08 291 37,301 7,500,000 66.94%
-------------------------------------------------------------------------------------
05/01/13 360 33,044 6,950,000 71.90%
01/01/08 336 36,997 7,300,000 68.22%
06/01/08 300 35,008 6,700,000 70.15%
05/01/08 300 32,496 6,150,000 74.31%
08/31/07 300 36,072 6,750,000 67.19%
-------------------------------------------------------------------------------------
06/01/08 360 30,406 8,200,000 55.12%
01/01/08 360 31,096 7,600,000 58.99%
04/01/08 360 29,392 5,700,000 77.08%
06/01/08 360 28,810 5,750,000 74.78%
06/01/08 240 34,649 5,700,000 75.00%
06/01/08 300 32,004 5,800,000 73.28%
06/01/08 360 29,108 5,675,000 74.89%
-------------------------------------------------------------------------------------
06/01/13 180 35,953 6,840,000 58.48%
4,070,000 60.20%
970,000 56.70%
350,000 57.14%
1,450,000 55.17%
-------------------------------------------------------------------------------------
04/01/08 300 30,095 6,100,000 65.44%
05/01/13 300 27,143 5,340,000 72.95%
02/01/08 300 26,503 7,400,000 51.76%
01/01/13 240 30,415 6,360,000 59.21%
02/01/08 300 27,102 5,700,000 64.61%
-------------------------------------------------------------------------------------
06/01/08 360 24,656 4,875,000 73.85%
05/01/08 360 23,568 5,600,000 62.46%
02/01/08 360 24,713 5,000,000 69.79%
03/01/08 300 25,118 6,000,000 58.15%
06/01/08 300 25,037 4,700,000 72.34%
-------------------------------------------------------------------------------------
05/01/08 300 24,944 4,500,000 74.15%
12/01/07 300 23,710 4,350,000 71.96%
05/01/08 300 22,005 5,350,000 58.11%
-------------------------------------------------------------------------------------
06/01/08 360 20,354 7,600,000 40.79%
2,800,000 40.36%
4,800,000 41.04%
06/30/08 240 23,097 6,200,000 48.39%
04/01/08 240 23,349 5,250,000 56.94%
03/01/08 240 23,819 4,400,000 66.71%
-------------------------------------------------------------------------------------
01/01/08 360 20,779 4,260,000 68.77%
1,525,000 69.27%
2,735,000 68.50%
05/01/08 360 20,588 3,700,000 77.26%
04/01/08 360 18,535 3,900,000 71.69%
06/01/08 300 19,777 4,600,000 58.70%
06/01/08 360 18,731 3,750,000 72.00%
-------------------------------------------------------------------------------------
06/01/08 300 19,988 3,900,000 69.23%
2,100,000 66.67%
1,800,000 72.22%
05/01/08 300 19,083 3,600,000 74.92%
12/01/09 360 19,101 3,700,000 72.68%
07/01/07 289 21,589 5,500,000 47.98%
02/01/08 300 18,743 3,500,000 73.93%
06/01/08 300 19,395 4,130,000 61.74%
-------------------------------------------------------------------------------------
05/01/08 300 18,481 3,800,000 67.04%
2,200,000 63.57%
1,600,000 71.80%
04/01/08 300 19,664 3,400,000 74.86%
01/01/08 300 18,223 3,450,000 72.05%
03/01/08 300 18,010 3,500,000 69.79%
06/01/08 360 16,340 3,000,000 80.00%
06/01/08 300 17,463 3,200,000 72.19%
03/01/08 360 15,194 3,100,000 74.04%
-------------------------------------------------------------------------------------
04/01/13 300 15,907 4,000,000 57.36%
1,410,000 63.68%
1,180,000 54.95%
1,410,000 53.06%
01/01/08 300 16,699 3,670,000 62.31%
03/01/13 360 16,684 3,100,000 73.27%
01/01/13 360 15,525 3,500,000 64.05%
-------------------------------------------------------------------------------------
03/01/08 300 15,624 3,500,000 61.24%
2,400,000 72.69%
600,000 33.23%
500,000 39.87%
03/01/08 300 15,098 2,900,000 72.18%
-------------------------------------------------------------------------------------
06/01/13 360 13,548 2,800,000 73.21%
06/01/08 300 14,238 3,100,000 64.52%
06/01/05 300 14,366 3,500,000 57.14%
06/01/08 300 14,949 4,300,000 46.51%
04/01/08 300 14,405 4,000,000 49.89%
-------------------------------------------------------------------------------------
03/01/08 360 14,270 2,700,000 73.58%
06/01/08 360 15,597 2,800,000 69.64%
04/01/05 324 14,728 3,000,000 64.90%
01/01/08 360 13,302 2,600,000 74.72%
06/01/08 240 14,809 4,300,000 44.77%
-------------------------------------------------------------------------------------
04/01/08 298 14,485 3,790,000 50.70%
04/01/08 360 12,679 2,600,000 72.97%
06/01/13 360 12,374 3,140,000 59.71%
05/01/08 300 13,011 2,840,000 64.72%
-------------------------------------------------------------------------------------
04/01/13 300 12,449 2,790,000 64.36%
725,000 55.04%
465,000 42.91%
440,000 73.69%
490,000 66.17%
670,000 81.89%
-------------------------------------------------------------------------------------
02/01/08 300 12,525 2,600,000 66.98%
06/01/08 360 12,533 2,900,000 58.62%
06/01/08 360 11,758 2,900,000 57.93%
01/01/08 360 11,189 2,800,000 58.70%
02/01/08 300 11,014 3,400,000 46.81%
-------------------------------------------------------------------------------------
04/01/13 180 14,123 3,100,000 51.29%
09/01/12 180 16,347 4,375,000 35.71%
06/01/13 360 10,524 2,250,000 68.89%
04/01/08 300 11,356 2,450,000 61.51%
04/01/08 360 10,483 2,200,000 68.09%
-------------------------------------------------------------------------------------
05/01/08 240 12,342 2,400,000 62.40%
04/01/13 240 11,513 2,700,000 53.52%
08/01/07 300 11,798 2,432,000 59.04%
01/01/08 300 9,072 2,800,000 46.14%
01/01/08 295 9,013 2,000,000 60.95%
-------------------------------------------------------------------------------------
04/01/13 300 8,483 1,770,000 68.20%
420,000 71.26%
470,000 63.68%
330,000 78.61%
550,000 63.49%
-------------------------------------------------------------------------------------
09/01/07 300 9,764 1,630,000 73.03%
06/01/08 300 8,802 1,616,000 73.64%
03/01/08 300 8,363 1,470,000 74.62%
06/01/08 300 8,132 1,475,000 71.19%
03/01/08 300 8,209 1,600,000 65.45%
-------------------------------------------------------------------------------------
03/01/08 300 7,501 1,360,000 75.86%
10/01/07 360 7,895 1,700,000 59.46%
03/01/08 300 7,488 1,350,000 73.86%
04/01/13 240 8,031 1,400,000 71.18%
10/01/12 180 8,426 1,215,000 63.75%
327 63.82%
DEBT ANNUAL ANNUAL
SERVICE UNDERWRITTEN PRINCIPAL INTEREST INTEREST
COVERAGE NET CASH & INTEREST ONLY SERVICING ACCRUAL
RATIO FLOW PAYMENTS PAYMENTS FEE METHOD
-----------------------------------------------------------------------------
1.42 $2,826,206 $1,987,182 0.055% Actual/360
2.37 4,602,923 1,943,673 0.055% 30/360
-----------------------------------------------------------------------------
1.33 2,607,498 1,953,354 0.055% ACTUAL/360
1.52 201,158 132,203 0.055% Actual/360
1.28 530,027 414,236 0.055% Actual/360
1.26 694,649 550,735 0.055% Actual/360
1.34 235,930 175,602 0.055% Actual/360
1.39 945,734 680,577 0.055% Actual/360
-----------------------------------------------------------------------------
1.48 2,518,434 1,697,129 0.055% Actual/360
1.42 1,992,700 1,401,339 0.055% Actual/360
2.87 3,924,064 1,366,830 0.055% Actual/360
1.61 2,003,221 1,242,732 0.055% Actual/360
1.49 1,708,805 1,149,924 0.055% Actual/360
-----------------------------------------------------------------------------
1.85 2,053,640 1,108,697 968,800 0.055% Actual/360
1.46 1,659,459 1,139,244 0.080% Actual/360
1.39 1,476,104 1,058,555 0.055% Actual/360
1.48 1,511,199 1,018,431 0.055% Actual/360
2.32 2,367,422 1,022,616 0.055% Actual/360
-----------------------------------------------------------------------------
1.92 1,872,357 973,559 0.055% Actual/360
1.87 1,811,916 969,601 0.055% Actual/360
2.22 1,925,490 865,823 0.055% Actual/360
1.48 1,259,814 852,840 0.055% Actual/360
1.39 1,182,362 851,966 0.055% Actual/360
2.32 2,067,465 892,260 0.055% Actual/360
1.71 1,468,782 859,189 0.055% Actual/360
-----------------------------------------------------------------------------
1.33 1,094,124 823,715 0.055% ACTUAL/360
465,567
166,997
461,560
1.28 1,072,539 837,537 0.055% Actual/360
-----------------------------------------------------------------------------
1.57 1,180,860 749,757 0.055% ACTUAL/360
204,948
221,917
141,018
612,977
-----------------------------------------------------------------------------
1.71 1,304,461 762,633 0.055% Actual/360
1.51 1,113,923 736,606 0.055% Actual/360
1.56 990,810 633,111 0.055% Actual/360
1.43 930,435 648,788 0.055% Actual/360
1.27 801,140 628,752 0.080% Actual/360
-----------------------------------------------------------------------------
1.47 817,443 555,136 0.055% Actual/360
1.35 780,276 576,451 0.055% Actual/360
1.56 867,469 554,762 0.055% Actual/360
1.33 982,124 736,910 0.055% Actual/360
1.41 780,927 555,033 0.055% Actual/360
-----------------------------------------------------------------------------
1.38 688,782 499,797 433,200 0.055% Actual/360
1.42 690,651 487,753 0.055% Actual/360
1.41 742,708 525,803 0.055% Actual/360
-----------------------------------------------------------------------------
1.43 695,631 487,792 0.080% ACTUAL/360
405,033
290,598
-----------------------------------------------------------------------------
1.42 690,373 485,856 0.055% Actual/360
1.87 941,782 502,358 0.055% Actual/360
1.44 742,751 517,403 0.055% Actual/360
1.29 615,871 477,157 0.055% Actual/360
1.49 710,259 476,858 0.055% Actual/360
-----------------------------------------------------------------------------
1.40 634,636 453,979 0.055% Actual/360
1.64 771,603 469,433 0.055% Actual/360
1.39 639,402 458,510 0.055% Actual/360
1.66 713,359 430,199 0.080% Actual/360
1.48 662,533 447,608 0.055% Actual/360
-----------------------------------------------------------------------------
1.46 579,979 396,525 0.055% Actual/360
1.32 584,123 443,959 0.055% Actual/360
1.31 551,828 420,098 0.055% Actual/360
1.48 576,649 389,950 0.080% Actual/360
1.32 571,095 432,859 0.055% Actual/360
-----------------------------------------------------------------------------
2.00 731,020 364,876 0.080% Actual/360
1.85 689,878 373,149 0.055% Actual/360
1.41 496,053 352,699 0.080% Actual/360
1.50 520,242 345,725 0.055% Actual/360
1.29 535,730 415,782 0.055% Actual/360
1.33 510,278 384,047 0.055% Actual/360
1.45 507,844 349,295 0.055% Actual/360
-----------------------------------------------------------------------------
1.65 710,837 431,438 0.055% ACTUAL/360
459,162
84,573
40,132
126,970
-----------------------------------------------------------------------------
1.40 505,196 361,141 0.055% Actual/360
1.43 465,649 325,715 0.055% Actual/360
2.10 669,131 318,035 0.055% Actual/360
1.58 576,033 364,984 0.055% Actual/360
1.54 500,231 325,230 0.055% Actual/360
-----------------------------------------------------------------------------
1.46 431,192 295,873 0.055% Actual/360
1.72 486,570 282,820 0.055% Actual/360
1.46 433,883 296,551 0.055% Actual/360
1.58 475,912 301,418 0.055% Actual/360
1.34 401,487 300,448 0.080% Actual/360
-----------------------------------------------------------------------------
1.31 391,456 299,323 0.055% Actual/360
1.56 442,970 284,522 0.055% Actual/360
1.81 479,007 264,059 0.080% Actual/360
-----------------------------------------------------------------------------
2.34 572,008 244,253 0.055% ACTUAL/360
208,342
363,666
2.43 674,673 277,166 0.055% Actual/360
1.50 419,531 280,189 0.055% Actual/360
1.72 490,634 285,830 0.055% Actual/360
-----------------------------------------------------------------------------
1.46 363,860 249,346 0.055% ACTUAL/360
132,419
231,441
1.30 321,863 247,060 0.055% Actual/360
1.48 329,594 222,414 0.055% Actual/360
1.74 412,539 237,330 0.055% Actual/360
1.56 351,266 224,773 0.055% Actual/360
-----------------------------------------------------------------------------
1.46 351,130 239,855 0.080% ACTUAL/360
180,322
170,808
1.52 348,768 228,996 0.080% Actual/360
1.48 339,283 229,214 0.080% Actual/360
2.03 525,371 259,073 0.055% Actual/360
1.48 332,941 224,913 0.080% Actual/360
1.44 334,960 232,740 0.055% Actual/360
-----------------------------------------------------------------------------
1.60 355,104 221,771 0.055% ACTUAL/360
198,259
156,845
1.45 342,230 235,973 0.055% Actual/360
1.68 368,366 218,682 0.055% Actual/360
1.57 339,146 216,117 0.055% Actual/360
1.34 262,039 196,076 0.055% Actual/360
1.37 288,065 209,559 0.055% Actual/360
1.61 293,675 182,328 0.055% Actual/360
-----------------------------------------------------------------------------
1.96 374,310 190,883 0.055% ACTUAL/360
124,327
108,842
141,141
1.66 333,305 200,385 0.055% Actual/360
1.43 286,030 200,204 0.055% Actual/360
1.87 347,941 186,298 0.055% Actual/360
-----------------------------------------------------------------------------
1.44 269,373 187,483 0.055% ACTUAL/360
219,257
25,058
25,058
1.64 297,039 181,174 0.080% Actual/360
-----------------------------------------------------------------------------
1.42 230,799 162,576 0.055% Actual/360
1.68 286,663 170,854 0.055% Actual/360
1.82 313,456 172,393 0.055% Actual/360
1.91 342,039 179,392 0.055% Actual/360
1.74 301,599 172,856 0.055% Actual/360
-----------------------------------------------------------------------------
1.35 231,002 171,244 0.055% Actual/360
1.31 244,916 187,165 0.055% Actual/360
1.45 256,174 176,739 0.055% Actual/360
1.61 257,620 159,629 0.055% Actual/360
1.71 303,767 177,710 0.055% Actual/360
-----------------------------------------------------------------------------
1.47 255,089 173,822 0.055% Actual/360
1.55 236,045 152,149 0.055% Actual/360
1.50 222,860 148,486 0.055% Actual/360
1.76 274,622 156,127 0.080% Actual/360
-----------------------------------------------------------------------------
1.72 257,280 149,387 0.055% ACTUAL/360
66,946
40,015
35,211
44,838
70,270
-----------------------------------------------------------------------------
1.40 210,419 150,304 0.055% Actual/360
1.36 204,362 150,400 0.055% Actual/360
1.67 236,009 141,100 0.055% Actual/360
1.78 238,933 134,266 0.055% Actual/360
2.33 307,728 132,170 0.055% Actual/360
-----------------------------------------------------------------------------
1.67 283,779 169,477 0.055% Actual/360
1.55 303,419 196,170 0.055% Actual/360
1.57 198,641 126,292 0.055% Actual/360
1.54 209,501 136,271 0.055% Actual/360
1.61 202,505 125,797 0.080% Actual/360
-----------------------------------------------------------------------------
1.25 184,844 148,104 0.055% Actual/360
1.55 213,809 138,159 0.055% Actual/360
1.60 225,897 141,578 0.055% 30/360
2.52 274,482 108,868 0.055% Actual/360
1.30 140,531 108,156 0.055% Actual/360
-----------------------------------------------------------------------------
1.58 160,629 101,801 0.055% ACTUAL/360
44,467
41,426
33,632
41,104
-----------------------------------------------------------------------------
1.32 155,063 117,168 0.055% Actual/360
1.30 137,425 105,621 0.055% Actual/360
1.33 133,309 100,354 0.055% Actual/360
1.28 124,556 97,583 0.080% Actual/360
1.66 163,335 98,504 0.055% Actual/360
-----------------------------------------------------------------------------
1.32 119,142 90,013 0.055% Actual/360
1.25 118,486 94,735 0.055% Actual/360
1.53 137,228 89,853 0.055% Actual/360
1.25 120,617 96,378 0.055% Actual/360
1.44 145,635 101,117 0.055% Actual/360
1.62 0.057%
Note: Loan Numbers 9671 - 9675 (The Retail Portfolio) consists of five Mortgage
Loans which are cross-collateralized and cross-defaulted. For purposes of this
Annex, this group of loans has been treated as one Mortgage Loan.
Note: With respect to loan numbers 6414, 5873, 6341, 3912, the terms of the
original loan agreements provided for an earnout option, or a one time
principal curtailment. Such earnout (or curtailment, as the case may be) has
been fully funded to the extent applicable, as of the Cut-Off Date, and no
future advances are required. For purposes of this annex, the loan is presented
as if it was fully funded on the earnout/curtailment date, with the Stated
Original Term to Maturity and Original Amortization Term reduced by the number
of months from origination to such earnout/curtailment date.
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
LaSalle National Bank,
as Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services Group -- Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. Series 1998-C1
Re: Transfer of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 1998 (the "Pooling and Servicing
Agreement"), by and among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as
Depositor, Banc One Mortgage Capital Markets, LLC, as Servicer, AMRESCO
Management, Inc., as Special Servicer, ABN AMRO Bank N.V., as Fiscal Agent and
LaSalle National Bank, as Trustee on behalf of the holders of Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1998-C1 (the "Certificates") in connection with the
transfer by ____________________ (the "Seller") to the undersigned (the
"Purchaser") of $_____________________ Balance of Class _____ Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Pooling and
Servicing Agreement.
1. In connection with such transfer, the Purchaser hereby
represents and warrants to you and the addressees hereof as follows:(1)
(a) [ ] The Purchaser is purchasing a Class of Regular
Certificates and is an institutional "accredited
investor" (an entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities
__________________
(1) Purchaser must include one of the following two certificates, and if it
certifies under paragraph (b) it must include the further certification as
to the type of entity as indicated therein.
C-1
Act of 1933, as amended (the "1933 Act") or an
entity all of the equity owners of which 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 its
investment in the Certificates, and the Purchaser
and any accounts for which it is acting are each
able to bear the economic risk of the Purchaser's or
such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its
own account or for one or more accounts (each of
which is an "institutional accredited investor") as
to each of which the Purchaser exercises sole
investment discretion, and is not acquiring such
Certificates with a view to any resale or
distribution thereof other than in accordance with
the restrictions set forth in Section 5.02 of the
Pooling and Servicing Agreement. The Purchaser
hereby undertakes to reimburse the Trust Fund for
any costs incurred by it in connection with this
transfer.
(b) [ ] (i) The Purchaser is purchasing a Class of
Regular Certificates or a Class of Residual
Interests and is aware that (x) (in the case of the
initial transfer) the transfer is being made in
reliance on Section 4(2) of the Securities Act of
1933, as amended (the "1933 Act") without a view to
any resale or distribution and (y) (in the case of
subsequent transfers) is being made in reliance on
Rule 144A promulgated under the 1933 Act; (ii) in
the case of subsequent transfers the Purchaser has
had the opportunity to obtain the information
required to be provided pursuant to paragraph
(d)(4)(i) of Rule 144A; and (iii) the Purchaser is a
"qualified institutional buyer" within the meaning
of Rule 144A because (y) as of the end of the
Purchaser's most recent fiscal year it owned or
invested on a discretionary basis $_(2) eligible
securities (excluding affiliate's securities, bank
deposit notes and CDs, loan participations,
repurchase agreements, securities owned but subject
to a repurchase agreement and swaps) and (z) the
Purchaser is one of the following entities:
[ ] an insurance company as defined in Section 2(13)
of the Act; or3
[ ] an investment company registered under the
Investment Company Act of 1940, as amended, or any
business development company
________________
(2) Purchaser must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Purchaser is a dealer, in which case
Purchaser must own/or invest on a discretionary basis at least $100,000,000
in securities.
(3) A purchase by an insurance company for one or more of its separate accounts,
as defined by section 2(a)(37) of the Investment Company Act of 1940, which
are neither registered nor required to be registered thereunder, shall be
deemed to be a purchase for the account of such insurance company.
C-2
as defined in Section 2(a)(48) of the Investment
Company Act of 1940, as amended, that is part of a
Family of Investment Companies (as defined below)
which owns in the aggregate at least $100,000,000 of
securities of issuers other than issuers that are
affiliated with the investment company or are part
of such Family of Investment Companies. The term
"Family of Investment Companies," as used herein,
means two or more registered investment companies
(or series thereof), except for a unit investment
trust whose assets consist solely of shares of one
or more registered investment companies, that have
the same investment adviser (or, in the case of unit
investment trusts, the same depositor) or investment
advisers (or, in the case of unit investment trusts,
depositors) that are affiliated by virtue of being
majority owned subsidiaries of the same parent or
because one investment adviser or depositor is a
majority owned subsidiary of the other.
[ ] a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act
of 1958; or
[ ] a plan (i) established and maintained by a state,
its political subdivisions, or any agency or
instrumentality of a state or its political
subdivisions, the laws of which permit the purchase
of securities of this type, for the benefit of its
employees and (ii) the governing investment
guidelines of which permit the purchase of
securities of this type; or
[ ] a business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of
1940, as amended;
[ ] a corporation (other than a U.S. bank, savings
and loan association or equivalent foreign
institution), partnership, Massachusetts or similar
business trust, or an organization described in
Section 501(c)(3) of the Internal Revenue Code; or
[ ] an investment adviser registered under the
Investment Advisers Act; or
[ ] a U.S. bank, savings and loan association or
equivalent foreign institution, which has an audited
net worth of at least $25 million as demonstrated in
its latest annual financial statements; or
[ ] at least $10 million, and the undersigned is a
broker-dealer registered with the SEC; or
C-3
[ ] less than $10 million, and the undersigned is a
broker-dealer registered with the SEC and will only
purchase Rule 144A securities in transactions in
which it acts as a riskless principal (as defined in
Rule 144A); or
[ ] less than $100 million, and the undersigned is an
investment company registered under the Investment
Company Act of 1940, as amended, which, together
with one or more registered investment companies
having the same or an affiliated investment adviser,
owns at least $100 million of eligible securities;
or
[ ] less than $100 million, and the undersigned is an
entity, all the equity owners of which are
"Qualified Institutional Buyers," as defined in Rule
144A.
2. If the Purchaser has certified that it is an institutional
"accredited investor" pursuant to Paragraph 1(a) above or that is a "qualified
institutional buyer" purchasing in the initial sale pursuant to 1(b) (i)(x)
above, the Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event
with the view to, or for resale in connection with, any distribution thereof,
or (ii) (with respect to Regular Certificates only) to institutional
"accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the 1933 Act or entities all of the
equity owners of which come within such paragraphs, pursuant to any other
exemption from the registration requirements of the 1933 Act, subject in the
case of this clause (ii) to (w) the receipt by the Certificate Registrar of a
letter substantially in the form hereof, (x) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar that
such reoffer, resale, pledge or transfer is in compliance with the 1933 Act,
(y) the receipt by the Certificate Registrar of such other evidence acceptable
to the Certificate Registrar that such reoffer, resale, pledge or transfer is
in compliance with the 1933 Act and other applicable laws, and (z) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the 1933 Act, by
reason of a specified exemption from the registration provisions of the 1933
Act which depends upon, among other things, the bona fide nature of the
Purchaser's investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the
C-4
securities laws of any State or any other jurisdiction, and that the
Certificate cannot be resold except to an "qualified institutional buyer" or
(in the case of Regular Certificates only) to an institutional "accredited
investor."
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner
of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following: (4)
|_| The Purchaser is a U.S. Person (as defined below) and
it has attached hereto an Internal Revenue Service
("IRS") Form W-9 (or successor form).
|_| The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) or the Paying Agent with
respect to distributions to be made on the Certificate. The
Purchaser has attached hereto either (i) a duly executed IRS
Form W-8 (or successor form), which identifies such Purchaser
as the beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed copies
of IRS Form 4224 (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state
that interest and original issue discount on the Certificate
and Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees
to provide to the Certificate Registrar updated IRS Forms W-8
or IRS Forms 4224, as the case may be, any applicable successor
IRS forms, or such other certifications as the Certificate
Registrar may reasonably request, on or before the date that
any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished
by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any of its political subdivisions, or an estate the income of which is subject
to U.S. federal income taxation regardless of its source or a trust if (A) for
taxable years beginning after __________, 1998 (or for taxable years ending
after August 20,
___________________
(4) Each Purchaser must include one of the two alternative certificates.
C-5
1998, if the trustee has made an application election), a court within the
United States is able to exercise primary supervision over the administration
of such trust, and one or more United States fiduciaries have the authority to
control all substantial decisions of such trust, or (B) for all other taxable
years, such trust is subject to United States federal income tax regardless of
the source of its income.
8. Please make all payments due on the Certificates:(5)
|_| (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities
therefor:
Bank:
ABA#:
Account #:
Attention:
|_| (b) by mailing a check or draft to the following address:
------------------------------
------------------------------
------------------------------
Very truly yours,
[NAME OF PURCHASER]
By:_________________________
Name:
Title
Dated:
__________________
(5) Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b).
▇-▇
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee] (the
"Transferee"), a [description of type of entity] duly organized and existing
under the laws of the [State of ] [United States], on behalf of which he makes
this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ]
3. That the Transferee of a Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificate, Series 1998-C1,
Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not a
Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the
Servicer based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause either the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or any
Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions. For these purposes, "ERISA
Prohibited Holder" means an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
section 4975 of the Code or any governmental plan (as defined in Section 3(32)
of ERISA) subject to any federal, state or local law which is, to a
D-1-1
material extent, similar to the foregoing provisions of ERISA or the Code
(each, a "Plan") or a Person acting on behalf of or investing the assets of
such Plan. For these purposes, "Non-U.S. Person" means any person other than a
U.S. Person, unless, with respect to the Transfer of a Residual Certificate,
(i) such person holds such Residual Certificate in connection with the conduct
of a trade or business within the United States and furnishes the Transferor
and the Certificate Registrar with an effective Internal Revenue Service Form
4224 or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement dated as of June 1, 1998 among Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., as Depositor, Banc One Mortgage Capital Markets, LLC,
as Servicer, AMRESCO Management, Inc., as Special Servicer, LaSalle National
Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent (the "Pooling and
Servicing Agreement"), as may be required to further effectuate the
restrictions on transfer of the Class [R] [LR] Certificate to such a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person. To the extent not defined herein, the capitalized terms used
herein shall have the meanings assigned thereto in the Pooling and Servicing
Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to
act as "tax matters person" and to perform the functions of "tax matters
person" of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and agrees to the irrevocable
designation of the Servicer as the Transferee's agent in performing the
function of "tax matters person."
D-1-2
9. The Transferee has reviewed, and agrees to be bound by and to abide
by, the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of 19_ .
[NAME OF TRANSFEREE]
By:
[Name of Officer]
[Title of Officer]
Personally appeared before me the 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 , 19 _ .
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the________day of , 19 _ .
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF TRANSFEROR LETTER
[Date]
---------------------,
as Certificate Registrar
Attention:
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 1998-C1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and
has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3 and 4 thereof are not
satisfied or that the information contained in paragraphs 3 and 4 thereof is
not true.
Very truly yours,
[Transferor]
D-2-1
EXHIBIT E
[INTENTIONALLY OMITTED]
E-1
EXHIBIT F
REQUEST FOR RELEASE
[Date]
[TRUSTEE]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 1998-C1,
REQUEST FOR RELEASE
Dear ,
In connection with the administration of the Mortgage Files held by or
on behalf of you as Trustee under a certain Pooling and Servicing Agreement
dated as of June 1, 1998 (the "Pooling and Servicing Agreement"), by and among
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as depositor, ABN AMRO Bank
N.V., as Fiscal Agent, [the undersigned, as servicer ("the Servicer"), AMRESCO
Management, Inc., as special servicer,] [Banc One Mortgage Capital Markets,
LLC, as servicer, the undersigned, as special servicer (the "Special
Servicer"),] and you, as trustee, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described 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 [Servicer]
[Special Servicer] hereby certifies that all
amounts received in connection with the Mortgage
Loan have been or will be credited to the
Certificate Account pursuant to the Pooling and
Servicing Agreement.
____2. The Mortgage Loan is being foreclosed.
____3. Other. (Describe)
F-1
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.
[SERVICER][SPECIAL SERVICER]
By:
Name:
Title:
F-2
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
LaSalle National Bank,
as Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services Group -- Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. Series 1998-C1
Re: Transfer of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase
$_______________ initial Certificate Balance of Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-C1, Class ______ (the "Certificate") issued pursuant to that certain
Pooling and Servicing Agreement dated as of June 1, 1998 (the "Pooling and
Servicing Agreement"), by and among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities
Inc., as Depositor, Banc One Mortgage Capital Markets, LLC, as Servicer,
AMRESCO Management, Inc., as Special Servicer, ABN AMRO Bank N.V., as Fiscal
Agent and LaSalle National Bank, as Trustee. Capitalized terms used and not
otherwise defined herein have the respective meanings ascribed to such terms in
the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser of any Class of Certificates (other than Class A or
Class X) is not (A) an employee benefit plan subject to the fiduciary
responsibility provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law")
which is, to a material extent, similar to the foregoing provisions of ERISA or
the Code (each a "Plan") or (B) a person acting on behalf of or using the
assets of any such Plan (including an entity whose underlying assets include
Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulation ? 2510.3-101), other than an
insurance company
G-1
using the assets of its general account under circumstances whereby the
purchase and holding of such Class of Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the
Code under Prohibited Transaction Class Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in l(a) or (b) above, an Opinion of Counsel in form and substance
satisfactory to the Certificate Registrar and the Depositor to the effect that
the acquisition and holding of such Certificate by such purchaser or transferee
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the fiduciary responsibility provisions of ERISA, the
prohibited transaction provisions of the Code or the provisions of any Similar
Law, will not constitute or result in a "prohibited transaction" within the
meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Servicer, the Special
Servicer, the Fiscal Agent, the Extension Adviser, the Underwriter or the
Depositor to any obligation or liability (including obligations or liabilities
under ERISA, Section 4975 of the Code or any such Similar Law).
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of_________,________.
Very truly yours,
[The Purchaser]
By:
Name:
Title:
G-2
EXHIBIT H
FORM OF DISTRIBUTION DATE STATEMENT
[TO COME FROM TRUSTEE]
H-1
EXHIBIT I-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
LAST ENDING
PROPERTY SCHEDULED PAID ANNUAL
PROPECTUS INSPECTION PRINCIPAL THRU DEBT
NUMBER CITY STATE DATE BALANCE DATE SERVICE
FINANCIAL INFORMATION:
CURRENT FULL YEAR:
CURRENT FULL YR. RECEIVED WITH DSC less than 1:
PRIOR FULL YEAR:
PRIOR FULL YR. RECEIVED WITH DSC less than 1:
ORIGINAL UNDERWRITING INFORMATION PRIOR FULL YEAR OPERATING INFORMATION
AS OF Y-E YYYY NORMALIZED
FINANCIAL
FINANCIAL INFO % TOTAL $ INFO AS OF % TOTAL $
AS OF DATE OCC REVENUE NOI DSCR DATE OCC REVENUE NOI DSCR
RECEIVED REQUIRED
LOANS BALANCE BALANCE
# % $ % % $ %
CURRENT ANNUAL OPERATING INFORMATION "ACTUAL" YTD FINANCIAL INFORMATION
AS OF Y-E YYYY NORMALIZED MONTH REPORTED
FINANCIAL FS FS
INFO AS OF % TOTAL $ START END % TOTAL $
DATE OCC REVENUE NOI DSCR DATE DATE OCC REVENUE NOI DSCR
NET CHANGE
CURRENT & BASIS
%
% TOTAL
OCC REV DSCR
EXHIBIT I-2
FORM OF DELINQUENT LOAN STATUS REPORT
---------------------------------------------------------------------------------------------------------------------------------
TOTAL TOTAL OTHER
ENDING O/S P&I O/S ADVANCES
PROSPECTUS PROPERTY PROPERTY SQ FT PAID TO SCHEDULED ADVANCES EXPENSES (TAXES & TOTAL
ID NAME TYPE CITY STATE OR UNITS DATE BALANCE TO DATE TO DATE INSURANCE) EXPOSURE
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
CURRENT CURRENT LTM CAP
PROSPECTUS MONTHLY INTEREST MAT. NOI LTM RATE
ID P&I RATE DATE DATE LTM NOI DSCR ASSIGNED
---------------------------------------------------------------------------
Delinquent Loan Status Report
Exhibit I-2
------------------------------------------------------------------------------------------------------------------------------
VALUE APPRAISAL, LOSS TOTAL
USING VALUATION/ BPO, OR USING 92% APPRAISAL
PROSPECTUS PROPERTY PROPERTY NOI & CAP APPRAISAL INTERNAL APPRAISAL ESTIMATED REDUCTION
ID NAME TYPE CITY STATE RATE DATE VALUE OR BPO RECOVERY % REALIZED
------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------
EXPECTED
FCL FCL
PROSPECTUS TRANSFER RESOLUTION START SALE WORKOUT
ID DATE DATE DATE DATE STRATEGY
-------------------------------------------------------------------
Delinquent Loan Status Report
Exhibit I-2
--------------------------------------------------------------
PROSPECTUS PROPERTY PROPERTY
ID NAME TYPE CITY STATE COMMENTS
--------------------------------------------------------------
EXHIBIT I-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
-------------------------------------------------------------------------------------------------------------------------------
BALANCE WHEN BALANCE AT
MODIFICATION MODIFICATION SENT TO THE EFFECTIVE
PROSPECTUS OR EXT EFFECTIVE SPECIAL DATE OF OLD NEW # OF OLD NEW OLD
ID CITY STATE FLAG DATE SERVICER MODIFICATION RATE RATE MONTHS P & I P & I MATURITY
-------------------------------------------------------------------------------------------------------------------------------
HISTORICAL LOAN MODIFICATION REPORT
EXHIBIT I-3
-------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS NEW MONTHS FOR REALIZED LOSS ESTIMATED INTEREST
ID CITY MATURITY MOD CHANGE TO TRUST LOSS TO TRUST COMMENTS
-------------------------------------------------------------------------------------------------------------------------------
EXHIBIT I-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT
---------------------------------------------------------------------------------------------------------------------------------
LATEST NET AMOUNT SCHEDULED TOTAL
% REC APPRAISAL EFFECTIVE RECEIVED BALANCE P&I
PROSPECTUS PROPERTY PROPERTY FROM OR BROKERS DATE OF SALES FROM (AS OF PAID
ID NAME TYPE CITY STATE SALE OPINION SALE PRICE SALE RESOLUTION) (ADVANCES)
---------------------------------------------------------------------------------------------------------------------------------
----------------------------------------
TOTAL SERVICING
PROSPECTUS EXPENSES FEES
ID (OUTSTANDING) EXPENSE
----------------------------------------
HISTORICAL LOSS ESTIMATE REPORT
EXHIBIT I-4
------------------------------------------------------------------------------------------------------------------------
ACUTAL DATE MINOR DATE TOTAL LOSS %
LOSSES LOSS ADJ MINOR ADJ LOSS OF
PROSPECTUS PROPERTY PROPERTY NET PASSED PASSED TO PASSED WITH SCHEDULED
ID NAME TYPE CITY PROCEEDS THROUGH THROUGH TRUST THROUGH ADJUSTMENT BALANCE
------------------------------------------------------------------------------------------------------------------------
EXHIBIT I-5
FORM OF REO STATUS REPORT
---------------------------------------------------------------------------------------------------------------------------------
TOTAL OTHER
ENDING P&I TOTAL ADVANCES
PROSPECTUS PROPERTY PROPERTY SQ FT PAID THRU SCHEDULED ADVANCES EXPENSES (TAXES & TOTAL
ID NAME TYPE CITY STATE OR UNITS DATE BALANCE TO DATE TO DATE INSURANCE) EXPOSURE
---------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
VALUATION
CURRENT CAP /
PROSPECTUS MONTHLY MATURITY LTM NOI LTM LTM RATE APPRAISAL
ID P&I DATE DATE NOI DSCR ASSIGNED DATE
-----------------------------------------------------------------------------------
REO STATUS REPORT
EXHIBIT I-5
-------------------------------------------------------------------------------------------------------------------------------
VALUE APPRAISAL / TOTAL SPECIAL
USING BPO OR LOSS USING APPRAISAL SERVICING
PROSPECTUS PROPERTY PROPERTY NOI & CAP INTERNAL 92% APPRAISAL ESTIMATED REDUCTION TRANSFER
ID NAME TYPE CITY STATE RATE VALUE OR BPO RECOVERY % REALIZED DATE
-------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------
REO PENDING
PROSPECTUS ACQUISITION RESOLUTION
ID DATE DATE COMMENTS
------------------------------------------------------
EXHIBIT I-6
FORM OF WATCH LIST REPORT
---------------------------------------------------------------------------------------------------------
ENDING PAID
PROSPECTUS PROPERTY PROPERTY SCHEDULED THRU MATURITY LTM COMMENT/REASON
ID NAME TYPE CITY STATE BALANCE DATE DATE DSCR ON WATCH LIST
---------------------------------------------------------------------------------------------------------
EXHIBIT I-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
As of
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations UNDERWRITING 1995 1996 1997 1998 YTD
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # OF MONTHS
Period Ended UNDERWRITING 1995 1996 1997 1998 YTD 1997-BASE 1997-1996
Statement Classification BASIS NORMALIZED NORMALIZED NORMALIZED VARIANCE VARIANCE
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI AFTER CAPITAL ITEMS
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
Income Comments :
Expense Comments :
Capital Items Comments :
EXHIBIT I-8
FORM OF NOI ADJUSTMENT WORKSHEET
AS OF MM/DD/YY
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
Year of Operations BORROWER ADJUSTMENT NORMALIZED
Occupancy Rate
Average Rental Rate
INCOME:
No. of Months Annualized # OF MONTHS
Period Ended UNDERWRITING 1998 YTD
Statement Classification BASIS NORMALIZED
Rental Income - Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME
OPERATING EXPENSES:
Real Estate Taxes
Property insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Replacement Reserves
Other Capital Expense
Total Capital Items
NOI AFTER CAPITAL ITEMS
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves\cap exp)
Source of Financial Data :
Income Comments :
Expense Comments :
Capital Items Comments :
EXHIBIT I-9
FORM OF CSSA LOAN SET-UP FILE
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
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
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...
CSSA Set-Up Data Record Layout
Exhibit I-9
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
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 Negam Allowed (% Of Orig Balance) 39 Numeric 0.075 Maximum Lifetime Percentage Increase To The
Original Balance Allowed Per The Loan
Agreement
Maximum Negam 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 0.00001 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
# 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"
CSSA Set-Up Data Record Layout
Exhibit I-9
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
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...
EXHIBIT I-10
FORM OF CSSA PERIODIC LOAN UPDATE FILE
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
Transaction Id (pool ID) 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id (subgroup within a pool) 2 AN XXX9701A Unique Identification Number Assigned To
Each Loan Group Within An Issue
Loan Id (loan number) 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 #VALUE! 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
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
CSSA Periodic Data Record Layout
Exhibit I-10
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
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
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
CSSA Periodic Data Record Layout
Exhibit I-10
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
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
EXHIBIT I-11
FORM OF CSSA PROPERTY DATA FILE
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Loan Id 2 AN 00000000012345 Unique Indentification Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan ID 3 AN 123 Unique Indentification Number Assigned To Each
Collateral Item In The Prospectus
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3) All Loans With The Same Numeric Value Are
Crossed
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN Text
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Securitization 16 Numeric 25000 RT, IN, WH, OF, MU, SS, OT - SF
# Of Units/Beds/Rooms At Securitization 17 Numeric 75 MF, MHP, LO, HC - Units
Property Status 18 AN 1 1=FCL, 2-REO, 3=Defeased, 4=partial Releases,
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
Ground Lease (Y/N) 22 AN N Either Y=Yes, S=Subordinate, N=No ground lease
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraised Value 25 Numeric 10000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD Could be different dates for different
properties if foreclosing
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75 Map to Most Recent Fiscal YTD Physical
Occupancy in CSSA, multiply times Current
Allocated %
Occupancy Date 30 Numeric YYYYMMDD
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
CSSA Property Data File
Exhibit I-11
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
---------- ------ ---- ------ -----------
Largest Tenant (Tenant Name) 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 (Tenant Name) 39 AN Text For Office, WH, Retail, Industrial, *Only if
disclosed in the offering document
Square Feet of 2nd Largest Tenant 40 Numeric 15000.000
3rd Largest Tenant (Tenant Name) 41 AN Text
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
Revenue At Securitization 45 Numeric 1000000.00
Operating Expenses At Securitization 46 Numeric 1000000.00
NOI At Securitization 47 Numeric 1000000.00
DSCR At Securitization 48 Numeric 1.5 Multiply times the Allocated % at
Securitization
Appraisal Value At Securitization 49 Numeric 1000000.00
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric Multiply times the Allocated % at
Securitization
Date of Last Inspection 52 AN YYYYMMDD
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
Preceding Fiscal Year Expenses 55 Numeric 1000000.00
Preceding Fiscal Year NOI 56 Numeric 1000000.00
Preceding Fiscal Year Debt Service Amt 57 Numeric 1000000.00
Preceding Fiscal Year DSCR 58 Numeric 1.3 Multiply times the Allocated % at
Securitization
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9 Multiply times the Allocated % at
Securitization
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1000000.00
Second Preceding FY Expenses 62 Numeric 1000000.00
Second Preceding FY NOI 63 Numeric 1000000.00
Second Preceding FY Debt Service 64 Numeric 1000000.00
Second Preceding FY DSCR 65 Numeric 1.3
Second Preceding FY Physical Occupancy 66 Numeric 0.90
EXHIBIT J
FORM OF PAYMENTS AFTER DETERMINATION REPORT
[TO COME FROM TRUSTEE]
J-1