SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: November 10, 1999
- ----------------------------------
(Date of earliest event reported)
Credit Suisse First Boston Mortgage Securities Corp.
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(Exact name of registrant as specified in its charter)
Delaware 333-51771 13-3320910
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(State or Other (Commission (I.R.S. Employer
Jurisdiction File Number) Identification No.)
of Incorporation)
11 Madison Avenue, New York, New York 10010-3629
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Address of Principal Executive Office
Registrant's telephone number, including area code: (212) 325-3629
<PAGE>
ITEM 5. OTHER EVENTS.
On November 10, 1999, Credit Suisse First Boston Mortgage Securities
Corp. (the "Registrant") issued the Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 in twenty classes (the "Certificates"). The Class
A-1, Class A-2, Class A-X, Class B, Class C, Class D, Class E and Class F
Certificates, with an aggregate principal balance of $1,047,200,000, were sold
to Credit Suisse First Boston Corporation and Morgan Stanley & Co. Incorporated
(collectively, the "Underwriters") pursuant to an Underwriting Agreement, dated
November 5, 1999, between the Registrant and the Underwriters. The Certificates
were issued pursuant to a pooling and servicing agreement, dated as of October
11, 1999 (the "Pooling and Servicing Agreement"), by and among the Registrant,
as depositor, The Chase Manhattan Bank, as trustee, Norwest Bank Minnesota,
National Association, as certificate administrator, Wells Fargo Bank, National
Association, as servicer and Lennar Partners, Inc., as special servicer, a copy
of which is filed as Exhibit 4.1. The Certificates represent interests in a
trust fund consisting primarily of a pool of fixed rate multifamily and
commercial mortgage loans (the "Mortgage Loans"). Certain of the Mortgage Loans
were acquired by the Registrant from Credit Suisse First Boston Mortgage Capital
LLC (the "CSFB Mortgage Loan Seller") pursuant to a mortgage loan purchase
agreement, dated as of October 11, 1999 (the "CSFB Mortgage Loan Purchase
Agreement"), between the CSFB Mortgage Loan Seller and the Registrant. The
remaining Mortgage Loans were acquired from Morgan Stanley Mortgage Capital Inc.
(the "MS Mortgage Loan Seller") pursuant to a mortgage loan purchase agreement,
dated as of October 11, 1999 (the "MS Mortgage Loan Purchase Agreement"),
between the MS Mortgage Loan Seller and the Registrant
Interest on the Certificates will be paid on each Distribution Date
(as defined in the Pooling and Servicing Agreement). Monthly payments in
reduction of the principal amount of the Certificates will be allocated to the
Certificates in accordance with the priorities set forth in the Pooling and
Servicing Agreement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit No. Description
----------- -----------
4.1 Pooling and Servicing Agreement
4.2 CSFB Mortgage Loan Purchase
Agreement
4.3 MS Mortgage Loan Purchase
Agreement
<PAGE>
Pursuant to the requirements of the Securities Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the Registrant
by the undersigned thereunto duly authorized.
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By: /s/ Allan Baum
---------------------------------
Name: Allan Baum
Title: Vice President
Date: January 5, 2000
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Paper (P) or Electronic (E)
----------- ----------- ---------------------------
4.1 Pooling and Servicing Agreement E
4.2 CSFB Mortgage Loan Purchase E
Agreement
4.3 MS Mortgage Loan Purchase E
Agreement
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Servicer
LENNAR PARTNERS, INC.,
Special Servicer
THE CHASE MANHATTAN BANK,
Trustee
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Certificate Administrator and Custodian
POOLING AND SERVICING AGREEMENT
Dated as of October 11, 1999
$1,187,129,449
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
===========================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
Section 1.03 Loan Identification Convention...............................
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Loans..........................................
Section 2.02 Acceptance by Custodian......................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase of Loans by the Mortgage Loan
Sellers, FINOVA and FINOVA Capital for Defects in
Mortgage Files and Breaches of Representations and
Warranties...................................................
Section 2.04 Execution of Certificates....................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act
as Special Servicer; Administration of the Loans.............
Section 3.02 Collection of Loan Payments..................................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts...........................................
Section 3.04 The Collection Account, Distribution Accounts, Excess
Interest Distribution Account and Yield Protection
Payment Account..............................................
Section 3.05 Permitted Withdrawals from the Collection Account and
the Distribution Accounts....................................
Section 3.06 Investment of Funds in the Collection Account,
Servicing Accounts, Cash Collateral Accounts, Lock-Box
Accounts, Policy Escrow Accounts, the Interest Reserve
Account and the REO Account..................................
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage..............................
Section 3.08 Enforcement of Due-On-Sale and Due-On-Encumbrance
Clauses; Assumption Agreements; Defeasance Provisions........
Section 3.09 Realization upon Defaulted Loans.............................
Section 3.10 Custodian to Cooperate; Release of Mortgage Files............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Reports to the Certificate Administrator; Collection
Account Statements...........................................
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Loans and REO Properties...................
Section 3.19 Additional Obligations of the Servicer and Special
Servicer; Inspections; Appraisals............................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations, Warranties and Covenants of the
Servicer.....................................................
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer.............................................
Section 3.25 Servicing of the L'Enfant Participation and Matters
Relating to the Exchange Apartments Loan.....................
Section 3.26 Limitation on Liability of the Directing
Certificateholder............................................
Section 3.27 Reports to the Securities and Exchange Commission;
Available Information........................................
Section 3.28 Lock-Box Accounts and Servicing Accounts.....................
Section 3.29 Interest Reserve Account.....................................
Section 3.30 Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Loans...............
Section 3.31 REMIC Administration.........................................
Section 3.32 Servicer and Special Servicer May Own Certificates...........
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; Reports by
Certificate Administrator; Other Information Available
to the Holders and Others....................................
Section 4.03 P&I Advances; Yield Protection Payment Advances..............
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Access to Certificateholders' Names and Addresses............
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.............................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.........................
Section 6.03 Limitation on Liability of the Trustee, the
Certificate Administrator, the Depositor, the
Servicer, the Special Servicer and Others....................
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.......
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.........................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination..................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee Advances.............................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND CERTIFICATE ADMINISTRATOR
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans........................................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees and Expenses of Trustee and Certificate
Administrator; Indemnification of Trustee and
Certificate Administrator....................................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodian.....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations, Warranties and Covenants of the
Trustee and Certificate Administrator........................
Section 8.14 Certain Matters Regarding the Certificate
Administrator................................................
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
Section 9.01 Termination Upon Repurchase or Liquidation of All
Loans........................................................
Section 9.02 Additional Termination Requirements..........................
Section 9.03 Purchase of ARD Loans........................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment....................................................
Section 10.02 Recordation of Agreement; Counterparts.......................
Section 10.03 Limitation on Rights of Certificateholders...................
Section 10.04 Governing Law................................................
Section 10.05 Notices......................................................
Section 10.06 Severability of Provisions...................................
Section 10.07 Grant of a Security Interest.................................
Section 10.08 Successors and Assigns; Beneficiaries........................
Section 10.09 Article and Section Headings.................................
Section 10.10 Notices to Rating Agencies...................................
EXHIBITS
A-1 Form of Class A Certificate
A-2 Form of Class A-X Certificate
A-3 Form of Class B Certificate
A-4 Form of Class C, Class D, Class E and Class F Certificate
A-5 Form of Class G and Class H Global Certificate
A-6 Form of Class J, Class K, Class L, Class M, Class N and Class O
Definitive Certificate
A-7 Form of Class V-1 and Class V-2 Certificate
A-8 Form of Residual Certificate
B Mortgage Loan Schedule
C-1 Form of QIB Investment Representation Letter - Qualified
Institutional Buyer
C-2 Form of Regulation S Investment Representation Letter - Non-U.S.
Person
C-3 Form of Investment Representation Letter - Institutional
Accredited Investor
D-1 Form of Transfer Affidavit
D-2 Form of Transferor Letter
E List of Mezzanine Loans
F Form of Request for Release
G-1 Form of Comparative Financial Status Report
G-2 Form of Delinquent Loan Status Report
G-3 Form of Historical Loan Modification Report
G-4 Form of Historical Loss Estimation Report
G-5 Form of REO Status Report
G-6 Form of Servicer Watch List
G-7 Form of Operating Statement Analysis Report
G-8 Form of NOI Adjustment Worksheet
G-9 Form of Loan Set-Up File
G-10 Form of Loan Periodic Update File
G-11 Form of Property File
G-12 Form of Bond Level File
G-13 Form of Collateral Summary File
H Form of Affidavit of Lost Note
I Investor Certification
J Underwritten Debt Service Coverage Ratios
<PAGE>
This Pooling and Servicing Agreement (the "Agreement"), is dated as
of October 11, 1999, among Credit Suisse First Boston Mortgage Securities Corp.,
as Depositor, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Servicer, LENNAR
PARTNERS, INC., as Special Servicer, THE CHASE MANHATTAN BANK, as Trustee, and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Certificate Administrator and
Custodian.
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") to be
created hereunder, the primary assets of which will be a pool of 152 multifamily
and commercial mortgage loans, including one participation in a commercial
mortgage loan, listed on Exhibit B hereto. As provided herein, the Trustee shall
elect or shall cause an election to be made that each of the Upper-Tier REMIC
and the Lower-Tier REMIC (as defined herein) be treated for federal income tax
purposes as a "real estate mortgage investment conduit" (a "REMIC").
<PAGE>
The following table sets forth the designation, the initial
pass-through rate (the "Pass-Through Rate"), the aggregate initial principal
amount (the "Original Certificate Balance") or notional balance ("Original
Notional Balance"), as applicable, and the initial ratings given each Class (as
indicated below) by the Rating Agencies (as defined herein) for each Class of
certificates comprising the interests in the Upper-Tier REMIC created hereunder:
UPPER-TIER REMIC
Original
Certificate
Balance (or, in
the case of the
Class A-X
Certificates, Initial
Class Original Notional Ratings(1)
Designation Pass-Through Rate Balance) DCR/Fitch/Moody's
- ----------------- ----------------- ----------------- ------------------
Class A-1 6.91% $199,500,000 AAA/AAA/Aaa
Class A-2 7.29% $660,500,000 AAA/AAA/Aaa
Class A-X (2) $1,170,108,234(3) AAA/AAA/Aaa
Class B 7.53% $52,600,000 AA/AA/Aa2
Class C (4) $58,500,000 A/A/A2
Class D (5) $14,700,000 A-/A-/A3
Class E (5) $40,900,000 BBB/BBB/Baa2
Class F (5) $20,500,000 BBB-/BBB-/Baa3
Class G (6) $32,200,000 NR/BB+/NR
Class H (6) $23,400,000 NR/BB/NR
Class J (6) $11,700,000 NR/BB-/NR
Class K (6) $11,700,000 NR/B+/NR
Class L (6) $15,800,000 NR/NR/B2
Class M (6) $9,300,000 NR/NR/B3
Class N (6) $7,100,000 NR/CCC/NR
Class O (6) $11,708,234 NR/NR/NR
Class R None(7) None(5) NA
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(1) The Certificates marked "NR" have not been rated by the applicable Rating
Agency.
(2) The Class A-X Pass-Through Rate, as defined herein.
(3) Original Notional Balance. The Class A-X Certificates will not have a
Certificate Balance and will not be entitled to receive distributions of
principal.
(4) Weighted Average Net Mortgage Rate (as defined herein) minus 0.24%.
(5) Weighted Average Net Mortgage Rate minus 0.08%.
(6) The lesser of 6.91% per annum and the Weighted Average Net Mortgage
Rate.
(7) The Class R Certificates will not have a Certificate Balance or notional
balance, do not bear interest and will not be entitled to distributions of
Prepayment Premiums or Yield Maintenance Charges or Yield Protection
Payments. Any Available Distribution Amount remaining in the Upper-Tier
Distribution Account after all required distributions under this Agreement
have been made to each other Class of Certificates will be distributed to
the Holders of the Class R Certificates.
The Class A-1, Class A-2, Class A-X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
and Class O Certificates (in each case, excluding the right to receive Yield
Protection Payments) will evidence "regular interests" in the Upper-Tier REMIC
created hereunder. The sole Class of "residual interests" in the Upper-Tier
REMIC created hereunder will be evidenced by the Class R Certificates. As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Loans and certain other related assets subject to this
Agreement as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as one "Lower-Tier REMIC." The Class LA-1, Class
LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH,
Class LJ, Class LK, Class LL, Class LM, Class LN and Class LO Uncertificated
Interests (in each case, excluding the right to receive Yield Protection
Payments) will evidence "regular interests" in the Lower-Tier REMIC (the
"Lower-Tier REMIC Regular Interests") created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC created hereunder will be evidenced
by the Class LR Certificates.
The following table sets forth the initial Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests:
LOWER-TIER REMIC
Class Interest Rate Original Lower-Tier
Principal
- ---------------------- ------------- -------------------
Class LA-1 (1) $199,500,000
Class LA-2 (1) $660,500,000
Class LB (1) $52,600,000
Class LC (1) $58,500,000
Class LD (1) $14,700,000
Class LE (1) $40,900,000
Class LF (1) $20,500,000
Class LG (1) $32,200,000
Class LH (1) $23,400,000
Class LJ (1) $11,700,000
Class LK (1) $11,700,000
Class LL (1) $15,800,000
Class LM (1) $9,300,000
Class LN (1) $7,100,000
Class LO (1) $11,708,234
Class LR None(2) None(2)
(1) The interest rate of each of the indicated Classes of Uncertificated
Lower-Tier Interests is the Weighted Average Net
Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or notional
balance, do not bear interest and will not be entitled to distributions of
Prepayment Premiums, Yield Maintenance Charges or Yield Protection
Payments. Any Available Distribution Amount remaining in the Lower-Tier
Distribution Account after distributing the Lower-Tier Distribution Amount
on each Distribution Date shall be distributed to the Holders of the Class
LR Certificates.
The parties intend that (i) the portion of the Trust Fund
representing the Excess Interest, the Excess Interest Distribution Account, the
Yield Protection Payments and the Yield Protection Payment Account shall be
treated as a grantor trust under Subpart E of Part 1 of Subchapter J of Chapter
1 of Subtitle A of the Code, (ii) the Class V-1 and Class V-2 Certificates shall
represent undivided beneficial interests in the portion of the Trust Fund
consisting of the Excess Interest and the Excess Interest Distribution Account,
and (iii) the Class A-X Certificates and any other Class of Regular Certificates
that receives payment of an Additional Collateral Prepayment Amount shall (to
the extent of such right to receive such payments) represent undivided
beneficial interests in the portion of the Trust Fund consisting of Yield
Protection Payments and the Yield Protection Payment Account.
As of the close of business on the Cut-off Date (as defined herein),
the Loans had an aggregate principal balance, after application of all payments
of principal due on or before such date, whether or not received, equal to
$1,170,108,234.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Certificate
Administrator and Custodian agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
"Accountant's Statement": As defined in Section 3.14.
"Accrued Certificate Interest Amount": With respect to each
Distribution Date and each Class of Regular Certificates, an amount equal to
interest for the related Interest Accrual Period at the Pass-Through Rate
applicable to such Class of Certificates for such Distribution Date, accrued on
the related Certificate Balance of such Class (or, in the case of the Class A-X
Certificates, on the Notional Balance thereof) immediately prior to such
Distribution Date. The Accrued Certificate Interest Amount for each such Class
shall be calculated on the basis of a 360-day year composed of twelve 30-day
months.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund and
the Lower-Tier REMIC within the meaning of Treasury regulation Section
1.856-6(b)(1), which is the first day on which the Lower-Tier REMIC is treated
as the owner of such REO Property for federal income tax purposes.
"Actual/360 Loans": The Loans indicated by the term "Act/360" under
the column heading "Interest Calc." in the Mortgage Loan Schedule.
"Additional Collateral": With respect to each Additional Collateral
Loan, the cash reserve or irrevocable letter of credit partially securing such
Additional Collateral Loan.
"Additional Collateral Loan": Any one of the Loans known as
Lynnwood Corporate Center, East Norriton Crossing and Kirkwood Landing
Apartments and designated as Loan Nos. 46, 80 and 115, respectively, on
the Mortgage Loan Schedule.
"Additional Collateral Prepayment Amount": As to any Distribution
Date and the Additional Collateral Loans, the amount of the related Additional
Collateral paid as a Principal Prepayment on such Additional Collateral Loan
during the related Due Period as a result of the related Borrower's failure to
satisfy the conditions entitling the Borrower to receive payment of such
Additional Collateral (other than by reason of an event of default under such
Additional Collateral Loan).
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 3.31(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(g)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 3.13 hereof and an annual report of
an Independent accountant required pursuant to Section 3.14 hereof.
"Annual Debt Service": For any Loan the annualized Monthly
Payment on such Loan.
"Anticipated Repayment Date": With respect to any ARD Loan,
designated as such on the Mortgage Loan Schedule, the date upon which such ARD
Loan starts to accrue interest at its Revised Rate.
"Appraisal": An appraisal prepared in accordance with 12
C.F.R. ss. 225.64 by an Appraiser selected by the Servicer or Special
Servicer, as applicable.
"Appraisal Reduction": For any Distribution Date and for any Loan as
to which an Appraisal Reduction Event has occurred, an amount calculated by the
Special Servicer equal to the excess, if any, of (a) the Stated Principal
Balance of such Loan over (b) the excess of (i) 90% of the Appraised Value of
the related Mortgaged Property (or, with respect to the L'Enfant Participation,
the pro rata portion of the related Mortgaged Property allocable thereto) as
determined (A) with respect to any Loan with an outstanding principal balance
equal to or greater than $2,000,000, by one or more Appraisals (the costs of
which shall be paid by the Servicer as a Servicing Advance) or (B) with respect
to any Loan with an outstanding principal balance less than $2,000,000, by an
Appraisal (or an update of a prior Appraisal) or an internal valuation performed
by the Special Servicer over (ii) the sum of (X) to the extent not previously
advanced by the Servicer or the Trustee, all unpaid interest on such Loan at a
per annum rate equal to its Mortgage Rate, (Y) all unreimbursed Advances in
respect of such Loan together with interest thereon at the Reimbursement Rate
(except as otherwise provided in Section 4.03(d)) and (Z) all currently due and
unpaid real estate taxes and assessments, Insurance Policy premiums, ground
rents and all other amounts due and unpaid with respect to such Loan, net of any
amounts currently escrowed for such amounts (which taxes, assessments, premiums,
ground rents and other amounts have not been subject to an Advance by the
Servicer or the Trustee and/or for which funds have not been escrowed).
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Loan or the related REO Property will be
reduced to zero as of the date such Loan is paid in full, liquidated,
repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date
and any Loan for which an Appraisal Reduction has been calculated, an amount
equal to the product of (i) the Reduction Rate for such Distribution Date and
(ii) the Appraisal Reduction with respect to such Loan.
"Appraisal Reduction Event": With respect to any Loan, the earliest
of (i) the third anniversary of the date on which the first extension of the
Maturity Date of such Loan becomes effective as a result of a modification of
such Loan by the Special Servicer pursuant to the terms hereof, which extension
does not decrease the aggregate amount of Monthly Payments on the Loan, (ii) 120
days after an uncured delinquency (without regard to the application of any
grace period) occurs in respect of such Loan, (iii) the date on which a
reduction in the amount of Monthly Payments on such Loan, or a change in any
other material economic term of such Loan (other than an extension of the
Maturity Date), becomes effective as a result of a modification of such Loan by
the Special Servicer, (iv) 60 days after a receiver has been appointed for the
Mortgagor of the related Mortgaged Property, (v) 60 days after a Mortgagor
declares bankruptcy or has become the subject of a decree or order for a
bankruptcy proceeding that shall have remained in force undischarged and
unstayed, and (vi) immediately after a Loan becomes an REO Loan; provided,
however, that an Appraisal Reduction Event shall not be deemed to occur at any
time on and after the dates when the aggregate Certificate Balances of all
Classes of Certificates (other than the Class A Certificates) have been reduced
to zero. The Special Servicer shall notify the Servicer promptly upon the
occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property,
the appraised value thereof as determined by an Appraisal.
"Appraiser": An Independent nationally recognized MAI, state
certified organization with five years of experience in properties of like kind
and in the same geographic area.
"ARD Loan": A Loan that is designated as such on the
Mortgage Loan Schedule.
"Asset Status Report": As defined in Section 3.21(e).
"Assignable Primary Servicing Fee": Any Primary Servicing Fee that
is payable to the Servicer pursuant to Section 3.11(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument, executed by the
related Mortgagor, assigning to the related mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Loan that is delinquent in respect of its Balloon Payment (including any REO
Loan as to which the Balloon Payment would have been past due), an amount equal
to the sum of (a) the principal portion of the Monthly Payment that would have
been due on such Loan on the related Due Date based on the constant payment
required by the related Note or the original amortization schedule thereof (as
calculated with interest at the related Mortgage Rate), if applicable, assuming
such Balloon Payment had not become due, after giving effect to any modification
of such Loan, and (b) interest on the Stated Principal Balance of such Loan at
the applicable Net Mortgage Rate (less the Servicing Fee Rate).
"Authenticating Agent": Norwest Bank Minnesota, National
Association, a national banking association, or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Loans (and any related REO
Properties) and on deposit in the Collection Account as of the close of business
on the Business Day preceding the related Servicer Remittance Date, exclusive of
the following amounts:
(i) all Monthly Payments collected but due on a Due Date
after the end of the related Due Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds or Insurance and Condemnation Proceeds, all amounts paid in
connection with Loan repurchases pursuant to Section 2.03(b), and all
other unscheduled recoveries received or deemed received after the related
Determination Date;
(iii) all amounts in the Collection Account that are payable or
reimbursable to any Person from such account pursuant to clauses (ii)
through (xvii), inclusive, of Section 3.05(a);
(iv) all amounts that are payable or reimbursable to
any Person pursuant to clauses (ii) through (iv), inclusive, of
Section 3.05(b);
(v) all Prepayment Premiums, Yield Maintenance Charges and
Yield Protection Payments;
(vi) all amounts deposited in the Collection Account
in error;
(vii) any net interest or net investment income on funds on
deposit in the Collection Account, the Interest Reserve Account, any Cash
Collateral Account, any Lock-Box Account, any Reserve Account or any REO
Account or in Permitted Investments in which such funds may be invested;
(viii) with respect to those Loans that are Actual/360 Loans and
any Distribution Date relating to each Interest Accrual Period ending in
each February or in any January in a year which is not a leap year, an
amount equal to one day of interest on the Stated Principal Balance of
such Loans as of the Distribution Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage Rates to the
extent such amount is to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.30; and
(ix) Excess Interest;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred with respect to the Loans from the REO Account
to the Collection Account for such Distribution Date pursuant to Section
3.16(c);
(c) the aggregate amount of any P&I Advances made in respect of the
Loans by the Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (which P&I Advances shall not include any
related Servicing Fees, Primary Servicing Fees or Workout Fees); and
(d) all funds released from the Interest Reserve Account for
distribution on such Distribution Date.
"Balloon Loan": Any Loan that by its terms provides for an
amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Loan and any date of
determination, the scheduled payment of principal due on the Maturity Date of
such Loan (less principal included in the applicable amortization schedule or
scheduled Monthly Payment).
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Loan and any of the Class A-1, Class A-2, Class B, Class C, Class D,
Class E and Class F Certificates, a fraction (not greater than 1) (a) whose
numerator is the amount, if any, by which (i) the Pass-Through Rate on such
Class of Certificates exceeds (ii) the Yield Rate (as provided by the Servicer)
used in calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount, if any, by which the (i)
Mortgage Rate on such Loan exceeds (ii) the Yield Rate (as provided by the
Servicer) used in calculating the Yield Maintenance Charge with respect to such
Principal Prepayment; provided, however, that if such Yield Rate is greater than
or equal to the lesser of (x) the Mortgage Rate on such Loan and (y) the
Pass-Through Rate described in clause (a)(i) above, then the Base Interest
Fraction shall be zero.
"Bond Level File": A file prepared by the Certificate Administrator
containing substantially the information described in Exhibit G-12 hereto.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Borrower": With respect to any Loan, any obligor or
obligors on any related Note or Notes.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in the States of New York, California, Maryland,
Minnesota and Florida are authorized or obligated by law or executive order to
remain closed.
"Business Hour": Any 60-minute interval between 9:00 a.m.
and 5:00 p.m., in the related time zone, on any Business Day.
"Cash Collateral Account": With respect to any Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document, into which account or accounts the Lock-Box Account monies are swept
on a regular basis for the benefit of the Trustee as successor to the applicable
Mortgage Loan Seller's interest in the Loans. Any Cash Collateral Account shall
be beneficially owned for federal income tax purposes by the Person who is
entitled to receive all reinvestment income or gain thereon in accordance with
the terms and provisions of the related Loan and Section 3.06, which Person
shall be taxed on all reinvestment income or gain thereon. The Servicer shall be
permitted to make withdrawals therefrom solely for deposit into the Collection
Account. To the extent not inconsistent with the terms of the related Loan, each
such Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Loan, the
cash collateral account agreement, if any, between the related Mortgage Loan
Originator and the related Borrower, pursuant to which the related Cash
Collateral Account, if any, may have been established.
"Cedelbank": Cedelbank, a corporation organized under the
laws of the Duchy of Luxembourg.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1999-C1, as executed, authenticated and delivered by the
Certificate Administrator.
"Certificate Administrator": Norwest Bank Minnesota,
National Association, a national banking association, and its successors
in interest.
"Certificate Administrator Fee": The fee to be paid to the
Certificate Administrator as compensation for the Certificate
Administrator's activities under this Agreement.
"Certificate Administrator Fee Rate": A rate equal to 0.0022% per
annum computed on the basis of a 360-day year consisting of twelve 30-day months
on the Stated Principal Balance of the related Loan.
"Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class A-X Certificates), (i) on or prior to the
first Distribution Date, an amount equal to the Original Certificate Balance of
such Class as specified in the Preliminary Statement hereto, and (ii) as of any
date of determination after the first Distribution Date, the Certificate Balance
of such Class on the Distribution Date immediately prior to such date of
determination (determined as adjusted pursuant to Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The
register maintained and the registrar appointed pursuant to Section 5.02.
"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 consent, approval or waiver pursuant to
this Agreement with respect to the rights, obligations or liabilities of the
Trustee, the Servicer or the Special Servicer, any Certificate registered in the
name of the Trustee, the Servicer, the Special Servicer or any Affiliate of any
of them shall be deemed not to be outstanding, and the Voting Rights to which it
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver has been obtained; provided that (i) such restrictions shall not apply to
the selection of the Controlling Class or the exercise of the Special Servicer's
or its Affiliates' rights as a member of the Controlling Class and (ii) the
foregoing shall not apply if the Trustee, the Servicer or the Special Servicer,
as the case may be, and/or their Affiliates, own the entire Class of each Class
of Certificates affected by such action, vote, consent or waiver. The Trustee
shall be entitled to request and conclusively rely upon a certificate of the
Servicer or the Special Servicer 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.
"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, substantially in the form of Exhibit A-1
hereto.
"Class A-1 Pass-Through Rate": 6.91% per annum.
"Class A-2 Certificate": A Certificate designated as
"Class A-2" on the face thereof, substantially in the form of Exhibit A-1
hereto.
"Class A-2 Pass-Through Rate": 7.29% per annum.
"Class A-X Certificate": A Certificate designated as
"Class A-X" on the face thereof, in the form of Exhibit A-2 hereto.
"Class A-X Component" or "Component": Any one of the
components set forth under the definition of "Component Rate."
"Class A-X Pass-Through Rate": As to any Distribution Date, the per
annum rate, expressed as a percentage, obtained by dividing (i) the sum of the
products of (a) the Certificate Balance of each Class of Regular Certificates
(other than the Class A-X Certificates) and (b) the related Component Rate for
such Distribution Date by (ii) the sum of all such Certificate Balances.
"Class A-X Yield Protection Payment Amount": As defined in
the definition of Yield Protection Payment.
"Class B Certificate": A Certificate designated as "Class B"
on the face thereof, in the form of Exhibit A-3 hereto.
"Class B Pass-Through Rate": 7.53% per annum.
"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": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date minus 0.24%.
"Class D Certificate": A Certificate designated as "Class D"
on the face thereof, in the form of Exhibit A-4 hereto.
"Class D Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date minus 0.08%.
"Class E Certificate": A Certificate designated as "Class E"
on the face thereof, in the form of Exhibit A-4 hereto.
"Class E Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date.
"Class F Certificate": A Certificate designated as "Class F"
on the face thereof, in the form of Exhibit A-4 hereto.
"Class F Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date.
"Class G Certificate": A Certificate designated as "Class G"
on the face thereof, in the form of Exhibit A-5 hereto.
"Class G Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class H Certificate": A Certificate designated as "Class H"
on the face thereof, in the form of Exhibit A-5 hereto.
"Class H Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class J Certificate": A Certificate designated as "Class J"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class J Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class K Certificate": A Certificate designated as "Class K"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class K Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class L Certificate": A Certificate designated as "Class L"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class L Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class LA-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LK Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LL Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LM Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LN Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LO Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as
"Class LR" on the face thereof, in the form of Exhibit A-8 hereto.
"Class M Certificate": A Certificate designated as "Class M"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class M Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class N Certificate": A Certificate designated as "Class N"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class N Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class O Certificate": A Certificate designated as "Class O"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class O Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 6.91% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class R Certificate": A Certificate designated as "Class R"
on the face thereof, in the form of Exhibit A-8 hereto.
"Class V-1 Certificate": A Certificate designated as
"Class V-1" on the face thereof, in the form of Exhibit A-7 hereto. The
Class V-1 Certificates have no Pass-Through Rate, Certificate Balance or
Notional Balance.
"Class V-2 Certificate": A Certificate designated as
"Class V-2" on the face thereof, in the form of Exhibit A-7 hereto. The
Class V-2 Certificates have no Pass-Through Rate, Certificate Balance or
Notional Balance.
"Closing Date": November 10, 1999.
"CMSA": Commercial Mortgage Securities Association.
"Co-Lender Agreement": Either of (i) the Co-Lender Agreement, dated
as of November 11, 1998, between The Chase Manhattan Bank, as trustee for the
Depositor's Commercial Mortgage Pass-Through Certificates, Series 1998-C2, and
the CSFB Mortgage Loan Seller, relating to the L'Enfant Trust Fund Note or (ii)
the Intercreditor Agreement, dated as of the Cut-off Date, among the Trustee,
the Certificate Administrator and the CSFB Mortgage Loan Seller, relating to the
Exchange Apartments Trust Fund Note.
"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 Summary File": A file prepared by the Certificate
Administrator containing substantially the information described in Exhibit G-13
hereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Collection Account": One or more separate custodial accounts
created and maintained by the Servicer or any Sub-Servicer on behalf of the
Servicer pursuant to Section 3.04(a) in the name of the Trustee on behalf of the
Certificateholders, into which the amounts set forth in Section 3.04(a) shall be
deposited directly, which account shall be entitled "Wells Fargo Bank, National
Association, in trust for The Chase Manhattan Bank, as Trustee for the benefit
of Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, Collection Account." Any
such account or accounts shall be an Eligible Account and shall be part of the
Lower-Tier REMIC.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report prepared by the
Servicer (combining reports prepared by the Servicer and the Special Servicer)
containing substantially the information described in Exhibit G-1 attached
hereto, setting forth, among other things, the occupancy, revenue, net operating
income before capital items, and debt service coverage for each Loan and related
Mortgaged Property based on the most current financial information received as
of the Determination Date immediately preceding the preparation of such report
for each of the following three periods (to the extent such information is
available): (i) the most current available year to date, (ii) the previous two
full fiscal years and (iii) the "base year" (representing the original analysis
of information used as of the Cut-off Date). For the purposes of the Servicer's
production of any such report that is required to state information for any
period prior to the Cut-off Date, the Servicer may conclusively rely (without
independent verification), absent manifest error, on information provided to it
by the related Mortgage Loan Seller.
"Component Rate": As to each of the Class A-X Components,
the rate set forth below with respect thereto:
Class LA-1 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class A-1
Pass-Through Rate.
Class LA-2 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class A-2
Pass-Through Rate.
Class LB Component: The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date
exceeds the Class B Pass-Through Rate.
Class LC Component: 0.24%.
Class LD Component: 0.08%.
Class LE Component: Zero.
Class LF Component: Zero.
Class LG Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class G
Pass-Through Rate for such Distribution Date.
Class LH Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class H
Pass-Through Rate for such Distribution Date.
Class LJ Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class J
Pass-Through Rate for such Distribution Date.
Class LK Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class K
Pass-Through Rate for such Distribution Date.
Class LL Component: The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date
exceeds the Class L Pass-Through Rate.
Class LM Component: The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date
exceeds the Class M Pass-Through Rate.
Class LN Component: The amount, if any, by which the
Weighted Average Net Mortgage Rate for such Distribution Date
exceeds the Class N Pass-Through Rate.
Class LO Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class O
Pass-Through Rate for such Distribution Date.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a
Certificate Balance at least equal to 25% of the initial Certificate Balance of
such Class (or, if no such Class exists, the most subordinate Class then
outstanding); provided, that for this purpose the Class N and Class O
Certificates shall be considered to be one Class. For purposes of determining,
at any time, which Class is the Controlling Class, the Certificate Balance of
each Class shall be deemed to be reduced by the amount allocated to such Class
of any Appraisal Reductions relating to Loans as to which Liquidation Proceeds
or other final payment has not yet been received. As of the Closing Date, the
Controlling Class shall be the Class N and Class O Certificates.
"Controlling Class Certificateholder": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Certificate Administrator from time to time.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Capital Markets Fiduciary Services.
"Corrected Loan": Any Specially Serviced Loan that has become
current and remained current for three consecutive Monthly Payments (for such
purposes taking into account any modification or amendment of such Loan) and as
to which Loan the Special Servicer has returned servicing to the Servicer
pursuant to Section 3.21(a).
"Credit File": Any documents, other than documents required to be
part of the related Mortgage File, in the possession of the Servicer and
relating to the origination and servicing of any Loan.
"Credit Lease Loans": The Loans known as ACCOR Mountain and ACCOR
California North and identified as Loan Numbers 6 and 7, respectively, on the
Mortgage Loan Schedule.
"Credit Tenant": The tenants under the credit leases
relating to the Credit Lease Loans.
"Crossed Loan": Any Loan which is cross-defaulted and
cross-collateralized with any other Loan.
"CSFB Environmental Policy Insurer": Commerce and Industry
Insurance Co.
"CSFB Loans": The Loans transferred to the Depositor
pursuant to the CSFB Mortgage Loan Purchase Agreement.
"CSFB Mortgage Loan Purchase Agreement": With respect to the CSFB
Loans, the agreement between the Depositor and the CSFB Mortgage Loan Seller,
dated as of October 11, 1999, relating to the transfer of all of the CSFB
Mortgage Loan Seller's right, title and interest in and to the CSFB Loans.
"CSFB Mortgage Loan Seller": Credit Suisse First Boston Mortgage
Capital LLC, a Delaware limited liability company, and its successors in
interest.
"Custodian": Norwest Bank Minnesota, National Association or any
other Person who is at any time appointed by the Trustee pursuant to Section
8.11 as a document custodian for the Mortgage Files, which Person shall not be
the Depositor or either Mortgage Loan Seller, or an Affiliate of either of them.
"Custodian Exception Report": As defined in Section 2.02(e).
"Cut-off Date": October 11, 1999.
"Cut-off Date Principal Balance": With respect to any Loan, the
outstanding principal balance of such Loan as of the Cut-off Date, after
application of all payments of principal due on or before such date, whether or
not received.
"DCR": Duff & Phelps Credit Rating Co., and its successors in
interest.
"Debt Service Coverage Ratio": With respect to any Loan for any
twelve-month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Loan during
such period; provided, however, that with respect to the Loans that initially
pay interest only, the related Monthly Payment will be calculated (for purposes
of this definition only) to include principal (based upon a 25-year amortization
schedule) and interest payments from origination.
"Default Interest": With respect to any Loan, interest accrued on
such Loan at the excess of (i) the related Default Rate over (ii) the sum of the
related Mortgage Rate and, if applicable, the related Excess Rate.
"Default Rate": With respect to each Loan, the per annum rate at
which interest accrues on such Loan following any event of default on such Loan,
including a default in the payment of a Monthly Payment or a Balloon Payment.
"Defaulted Loan": A Loan that is at least sixty days delinquent in
respect of its Monthly Payments or more than thirty days delinquent in respect
of its Balloon Payment, if any, in each case without giving effect to any grace
period permitted by the related Mortgage or Note and without regard to any
acceleration of payments under the related Mortgage and Note; provided, however,
that no Monthly Payment (other than a Balloon Payment) shall be deemed
delinquent if less than ten dollars of all amounts due and payable on such Loan
has not been received.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": As defined in Section 3.08(f)(i).
"Defeasance Loan": As defined in Section 3.08(f).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding principal balance of the Loan, which valuation results from
a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": A Certificate issued in
registered, definitive physical form.
"Delinquent Loan Status Report": A report prepared by the Servicer
(combining reports prepared by the Servicer and the Special Servicer) containing
substantially the information described in Exhibit G-2 attached hereto, setting
forth, among other things, a list of those Loans that, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, were delinquent 30 to 59 days, delinquent 60 to 89 days, delinquent 90
days or more, or current but Specially Serviced Loans or that were in
foreclosure but were not REO Loans. The Servicer shall not include on the
Delinquent Loan Status Report any Loan that has not been delinquent at least one
month after the related Due Date unless such Loan is a Specially Serviced Loan.
"Denomination": As defined in Section 5.01(b).
"Depositor": Credit Suisse First Boston Mortgage Securities
Corp., a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
close of business on the 11th day of the month in which such Distribution Date
occurs, or if such 11th day is not a Business Day, the Business Day immediately
following such 11th day.
"Directing Certificateholder": The Controlling Class
Certificateholder selected by the Holders of more than 50% of the Percentage
Interests in the Controlling Class, by Certificate Balance, as certified by the
Certificate Administrator from time to time; provided, however, that until a
Directing Certificateholder is so selected or after receipt of a notice from the
Holders of more than 50% of the Percentage Interests in the Controlling Class
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that beneficially owns the largest aggregate Certificate
Balance of the Controlling Class shall be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof that are not (within the meaning
of Treasury Regulation Section 1.512(b)-1(c)(5)) customarily provided to tenants
in connection with the rental of space for occupancy, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, the performance
of any construction work thereon or any use of such REO Property in a trade or
business conducted by the Trust Fund, in each case other than through an
Independent Contractor; provided, however, that the Trustee (or the Servicer or
the Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an REO Property solely because the Trustee (or the Servicer or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance or makes
decisions as to repairs (of the type that would be deductible under Section 162
of the Code) or capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
that is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code and (v) any other Person so designated by the Servicer or the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account.
"Distribution Date": With respect to any month, the fourth Business
Day after the Determination Date of such month, commencing in November 1999.
"Due Date": With respect to (i) any Loan on or prior to its Maturity
Date, the day of the month set forth in the related Note on which each Monthly
Payment thereon is scheduled to be first due (without giving effect to any grace
period with respect to late Monthly Payments), (ii) any Loan after the Maturity
Date therefor, the day of the month set forth in the related Note on which each
Monthly Payment on such Loan had been scheduled to be first due (without giving
effect to any grace period) and (iii) any REO Loan, the day of the month set
forth in the related Note on which each Monthly Payment on the related Loan had
been scheduled to be first due (without giving effect to any grace period).
"Due Period": With respect to each Distribution Date, the period
beginning on the day following the Determination Date in the month immediately
preceding the month in which such Distribution Date occurs and ending on the
Determination Date of the month in which such Distribution Date occurs.
"Eligible Account": Either (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company
(including the Trustee) the long-term unsecured debt obligations of which are
rated at least "A" by DCR (or if not rated by DCR, then having the indicated
ratings from Fitch and Moody's), "AA" by Fitch (or, if not rated by Fitch, then
having the indicated ratings from Moody's and DCR), and "Aa2" (or "Aa3,"
provided Wells Fargo Bank, National Association, is the Servicer) by Moody's, if
the deposits are to be held in such account for more than 30 days or the
short-term debt obligations of which have a short-term rating of not less than
"D-1" by DCR (or, if not rated by DCR, then having the indicated ratings from
Fitch and Moody's), "P-1" by Moody's and "F-1+" by Fitch (or, if not rated by
Fitch, then having the indicated ratings from Moody's and DCR) if the deposits
are to be held in such account for 30 days or less, or such other account or
accounts with respect to which each of the Rating Agencies shall have confirmed
in writing that the then-current rating assigned to any of the Certificates that
are currently being rated by such Rating Agency will not be qualified (as
applicable), downgraded or withdrawn by reason thereof or (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federal- or state-chartered depository institution or trust company (including
the Trustee) that, in either case, has a combined capital and surplus of at
least $50,000,000 and has corporate trust powers, acting in its fiduciary
capacity, provided that any state-chartered depository institution or trust
company is subject to regulation regarding fiduciary funds substantially similar
to 12 C.F.R. ss. 9.10(b) or such other account or accounts with respect to which
each of the Rating Agencies shall have confirmed in writing that the
then-current rating assigned to any of the Certificates that are currently being
rated by such Rating Agency will not be qualified (as applicable), downgraded or
withdrawn by reason thereof. Eligible Accounts may bear interest. No Eligible
Account shall be evidenced by a certificate of deposit, passbook or other
similar instrument.
"Eligible Investor": (i) With respect to the Private Certificates, 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, (ii) with
respect to the Class G and Class H Certificates, a Person which is not a "U.S.
Person" as defined in Regulation S under the Securities Act that is purchasing
for its own account or for the account of a Person which is not a "U.S. Person"
and (iii) with respect to the Class O Certificates, 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 Loan as to which the related Mortgaged Property is multifamily property
or (ii) the American Society for Testing and Materials in the case of Specially
Serviced Loan as to which the related Mortgaged Property is not multifamily
property.
"Environmental Policies": Collectively, the Secured Creditor
Impaired Property Policy Number 7788328 issued by the CSFB Environmental Policy
Insurer and the Creditor Reimbursement for Environmental Damages Insurance
Policy Number 4LY 00032 issued by the MS Environmental Policy Insurer.
"ERISA": The Employee Retirement Income Security Act of
1974, as amended.
"ERISA Prohibited Holder": As defined in
Section 5.02(g)(i)(A).
"Escrow Payment": Any payment received by the Servicer for the
account of any Mortgagor for application toward the payment of real estate
taxes, assessments, Insurance Policy premiums and similar items in respect of
the related Mortgaged Property, including amounts for deposit to any reserve
account.
"Euroclear": The Euroclear System.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Excess Interest": With respect to each of the ARD Loans, interest
accrued on such Loan and allocable to the Excess Rate. The Excess Interest is an
asset of the Trust Fund, but shall not be an asset of either REMIC formed
hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate trust account or accounts by the
Certificate Administrator pursuant to Section 3.04(c), which shall be entitled
"Norwest Bank Minnesota, National Association, as Certificate Administrator, in
trust for The Chase Manhattan Bank, as Trustee, in trust for Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, Excess Interest Distribution Account" and which
shall be an Eligible Account. The Excess Interest Distribution Account shall not
be an asset of either REMIC formed hereunder.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable Mortgage Rate, each as set forth in the Mortgage Loan
Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Act Report": A monthly Statement to Certificateholders,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis Report, Servicer Watch List, NOI Adjustment
Worksheet or report pursuant to Section 4.02(b) or Annual Compliance Report to
be filed with the Commission, under cover of the related form required by the
Exchange Act.
"Exchange Apartments Loan": The Loan known as the Exchange
Apartments and identified as Loan Number 1 on the Mortgage Loan Schedule.
"Exchange Apartments Other Note": With respect to the Exchange
Apartments Loan, the other note which is secured by the related Mortgaged
Property and not included in the Trust Fund.
"Exchange Apartments Trust Fund Note": The Trust Fund Note
relating to the Exchange Apartments Loan.
"FDIC": Federal Deposit Insurance Corporation or any
successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Loan or REO Property (other than a Loan
or REO Property, as the case may be, that was purchased (i) by any Mortgage Loan
Seller pursuant to Section 7 of the related Mortgage Loan Purchase Agreement or
by FINOVA or FINOVA Capital pursuant to Section 9.3 of the related FINOVA
Mortgage Loan Purchase Agreement, (ii) by the Servicer or the Special Servicer
pursuant to Section 3.18(b), (iii) by the Holder of 100% of the Percentage
Interests in the Class V-1 or Class V-2 Certificates, as applicable, pursuant to
Section 9.03 or (iv) by either Mortgage Loan Seller, the Special Servicer, the
Holders of more than 50% of the Percentage Interests in the Controlling Class or
the Servicer pursuant to Section 9.01), that there has been a recovery of all
Insurance and Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries that, in the Special Servicer's reasonable good faith judgment,
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"FINOVA": FINOVA Realty Capital, Inc. or any successor
thereto.
"FINOVA Capital": FINOVA Capital Corporation or any
successor thereto.
"FINOVA Mortgage Loan Purchase Agreements": Collectively, that
certain Mortgage Loan Purchase Agreement, dated as of June 30, 1999, among
FINOVA, FINOVA Capital and the MS Mortgage Loan Seller, and that certain
Mortgage Loan Purchase Agreement, dated as of June 30, 1999, between FINOVA and
the MS Mortgage Loan Seller.
"Fitch": Fitch IBCA, Inc., and its successors in interest.
"FNMA": Federal National Mortgage Association or any
successor thereto.
"Guarantor": ACCOR S.A., a French corporation, as guarantor
under the credit leases relating to the Credit Lease Loans.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Historical Loan Modification Report": With respect to each Servicer
Remittance Date, a report prepared by the Servicer (combining reports prepared
by the Servicer and the Special Servicer) containing all or substantially all
the content described in Exhibit G-3 attached hereto and setting forth, among
other things, those Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, have
been modified pursuant to this Agreement (i) during the related Due Period and
(ii) since the Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": With respect to each Servicer
Remittance Date, a report prepared by the Servicer (combining reports prepared
by the Servicer and the Special Servicer) containing substantially the
information described in Exhibit G-4 attached hereto and setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds collected for the related Due Period and, separately
stated, historically and (ii) the amount of realized losses occurring on the
Loans during such Due Period, set forth on a Loan-by-Loan basis.
"Independent": When used with respect to any specified Person, any
such Person that (i) is in fact independent of the Depositor, the Servicer, the
Special Servicer, the Trustee and any and all Affiliates thereof, (ii) does not
have any material direct financial interest in or any material indirect
financial interest in any of the Depositor, the Servicer, the Special Servicer
or any Affiliate thereof and (iii) is not connected with the Depositor, the
Servicer, the Special Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor, the Servicer, the Special Servicer, the Trustee or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
Class of debt or equity securities issued by the Depositor, the Servicer, the
Special Servicer, the Trustee or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Servicer or the Trust, delivered to the Trustee and
the Servicer), so long as the Trust Fund does not receive or derive any income
from such Person and provided that the relationship between such Person and the
Trust Fund is at arm's length, all within the meaning of Treasury Regulation
Section 1.856-4(b)(5) (except that the Servicer or the Special Servicer shall
not be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) has been delivered to the Trustee to that
effect or (ii) any other Person (including the Servicer and the Special
Servicer) upon receipt by the Trustee and the Servicer of an Opinion of Counsel
(at the expense of the party seeking to be deemed an Independent Contractor), to
the effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Ineligible Class V-1 Owner": Any Borrower, or any entity that owns
an ownership interest in a Borrower, other than, in each case, the CSFB Mortgage
Loan Seller or an affiliate thereof.
"Ineligible Class V-2 Owner": Any Borrower, or any entity that owns
an ownership interest in a Borrower, other than, in each case, the MS Mortgage
Loan Seller or an affiliate thereof.
"Initial Purchaser": Credit Suisse First Boston Corporation,
as initial purchaser of the Private Certificates.
"Institutional Accredited Investor": As defined in
Section 5.02(b).
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor, in either case, in accordance with the Servicing Standard.
"Insurance Policy": With respect to any Loan, any hazard insurance
policy, flood insurance policy, title policy or other insurance policy that is
maintained from time to time in respect of such Loan or the related Mortgaged
Property.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period commencing on the 11th day of the calendar month preceding the month
in which such Distribution Date occurs and ending on the 10th day of the month
in which such Distribution Date occurs. Each Interest Accrual Period shall be
deemed for purposes of this definition to consist of 30 days.
"Interest Reserve Account": The account created and maintained by
the Servicer pursuant to Section 3.29, which shall be entitled "Wells Fargo
Bank, National Association, as Servicer, for the benefit of The Chase Manhattan
Bank, as Trustee, in trust for Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-C1,
Interest Reserve Account" and which shall be an Eligible Account.
"Interest Shortfall Amount": As to any Distribution Date and any
Class of Regular Certificates, the amount, if any, by which the amount
distributed on such Class on such Distribution Date in respect of interest is
less than the related Optimal Interest Distribution Amount.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investor Inquiries": As defined in Section 4.02(b).
"Issue Price": With respect to each Class of Certificates,
the "issue price" as defined in the REMIC Provisions.
"L'Enfant Other Note": With respect to the L'Enfant Participation,
the other note which is secured by the related Mortgaged Property and not
included in the Trust Fund.
"L'Enfant Participation": The Loan known as L'Enfant Plaza and
identified as Loan Number 9 on the Mortgage Loan Schedule. The L'Enfant
Participation is a 50% participation in the L'Enfant Trust Fund Note.
"L'Enfant Participation Agreement": The Participation and
Intercreditor Agreement, dated as of the Cut-off Date, between Credit Suisse
First Boston Mortgage Capital LLC, as the holder of the retained participation,
and the CSFB Mortgage Loan Seller, as the holder of the transferred
participation.
"L'Enfant Servicer": First Union National Bank, as servicer
under the Depositor's Commercial Mortgage Pass-Through Certificates,
Series 1998-C2.
"L'Enfant Special Servicer": Lennar Partners, Inc., as
special servicer under the Depositor's Commercial Mortgage Pass-Through
Certificates, Series 1998-C2.
"L'Enfant Trust Fund Note": The Trust Fund Note relating to
the L'Enfant Participation.
"Late Collections": With respect to any Loan, all amounts (except
Penalty Charges) received thereon during any Due Period, whether as payments,
Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Loan (without regard to any acceleration of amounts due thereunder by
reason of default) on a Due Date in a previous Due Period and not previously
received. With respect to any REO Loan, all amounts (except Penalty Charges)
received in connection with the related REO Property during any Due Period,
whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of principal or interest
due or deemed due in respect of such REO Loan or the predecessor Loan (without
regard to any acceleration of amounts due under the predecessor Loan by reason
of default) on a Due Date in a previous Due Period and not previously received.
"Lead Lender": With respect to each Whole Loan relating to each
Trust Fund Note, the holder of the note which by the terms of the related
Co-Lender Agreement is entitled to direct the administration of the Whole Loan
and has the sole authority to exercise and enforce the lender's rights under the
Loan Documents relating to such Whole Loan.
"Liquidation Event": With respect to any Loan, any of the following
events: (i) payment in full of such Loan; (ii) the making of a Final Recovery
Determination with respect to such Loan; (iii) the repurchase of such Loan by
any Mortgage Loan Seller pursuant to Section 7 of the related Mortgage Loan
Purchase Agreement or by FINOVA or FINOVA Capital pursuant to Section 9.3 of the
related FINOVA Mortgage Loan Purchase Agreement; (iv) the purchase of such Loan
by the Servicer or the Special Servicer pursuant to Section 3.18(b); (v) the
purchase of any ARD Loan by the Holder of 100% of the Percentage Interests in
the Class V-1 or Class V-2 Certificates, as applicable, pursuant to Section 9.03
or (vi) the purchase of such Loan by either Mortgage Loan Seller, the Special
Servicer, the Holders of more than 50% of the Percentage Interests in the
Controlling Class, or the Servicer pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Loan as to which the Special Servicer
receives a full or discounted payoff with respect thereto from the related
Mortgagor or any Liquidation Proceeds with respect thereto, equal to the product
of the Liquidation Fee Rate and the proceeds of such full or discounted payoff
or the net Liquidation Proceeds (net of the related costs and expenses
associated with the related liquidation) related to such liquidated Specially
Serviced Loan, as the case may be; provided, however, that no Liquidation Fee
shall be payable with respect to clauses (iii) (but only as it relates to a sale
to the Servicer or Special Servicer), (iv), (v) or (vi) of the definition of
Liquidation Proceeds; and provided, further, that no Liquidation Fee shall be
payable in the event of a purchase of the Exchange Apartments Trust Fund Note by
the holder of the Exchange Apartments Other Note upon the occurrence of a
Servicing Transfer Event pursuant to the terms of the Co-Lender Agreement
relating to the Exchange Apartments Loan.
"Liquidation Fee Rate": As defined in Section 3.11.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received by the Servicer, net of
expenses, in connection with: (i) the liquidation of a Mortgaged Property or
other collateral constituting security for a Defaulted Loan, through trustee's
sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion
thereof required to be released to the related Mortgagor; (ii) the realization
upon any deficiency judgment obtained against a Mortgagor; (iii) the purchase of
a Defaulted Loan by the Servicer or the Special Servicer pursuant to Section
3.18(b) or any other sale thereof pursuant to Section 3.18(c); (iv) the
repurchase of a Loan by any Mortgage Loan Seller pursuant to Section 7 of the
related Mortgage Loan Purchase Agreement or by FINOVA or FINOVA Capital pursuant
to Section 9.3 of the related FINOVA Mortgage Loan Purchase Agreement; (v) the
purchase of such Loan by the Holder of 100% of the Percentage Interests in the
Class V-1 or Class V-2 Certificates, as applicable, pursuant to Section 9.03; or
(vi) the purchase of all Loans by either Mortgage Loan Seller, Holders of more
than 50% of the Percentage Interests in the Controlling Class or the Servicer
pursuant to Section 9.01.
"Loan": Each of the mortgage loans and the L'Enfant Participation
transferred and assigned to the Trustee pursuant to Section 2.01, and from time
to time held in the Trust Fund, including any Loan that becomes a Specially
Serviced Loan. As used herein, the term "Loan" includes the related Note,
Mortgage and other documents contained in the related Mortgage File and any
related agreements.
"Loan Agreement": With respect to any Loan, the loan agreement, if
any, between the related Mortgage Loan Originator and the Borrower, pursuant to
which such Loan was made.
"Loan Documents": With respect to each Loan, to the extent
applicable, the Loan Agreement, the Mortgage, the Note, the Assignment of Leases
(if separate from the Mortgage), the Security Agreement, the related Co-Lender
Agreement and L'Enfant Participation Agreement (with respect to the L'Enfant
Participation), the related Co-Lender Agreement (with respect to the Exchange
Apartments Loan), any letters of credit relating to the Additional Collateral
Loans, any UCC Financing Statements, the title insurance policy, all surveys,
all insurance policies, any environmental liability agreements, any escrow
agreements for improvements or lease-up, any guaranties related to such Loan,
any prior assignments of mortgage in the event that the originator is not the
originator of record, any collateral assignments of property management
agreements and other services agreements required by the applicable commitment
and other loan documents and all modification, consolidation and extension
agreements, if any.
"Loan Periodic Update File": A file prepared by the Servicer or,
with respect to Specially Serviced Loans, the Special Servicer containing
substantially the information described in Exhibit G-10 hereto.
"Loan Set-Up File": A file prepared by the Servicer or, with respect
to Specially Serviced Loans, the Special Servicer containing substantially the
information described in Exhibit G-9 hereto.
"Lock-Box Account": With respect to any Mortgaged Property, the
account, if any, created pursuant to any documents relating to a Loan to receive
revenues therefrom. Any Lock-Box Account shall be beneficially owned for federal
income tax purposes by the Person who is entitled to receive the reinvestment
income or gain thereon in accordance with the terms and provisions of the
related Loan and Section 3.06, which Person shall be taxed on all reinvestment
income or gain thereon. The Servicer shall be permitted to make withdrawals
therefrom for deposit into the related Cash Collateral Accounts.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the applicable Mortgage Loan Originator or the
applicable Mortgage Loan Seller and the related Borrower, pursuant to which the
related Lock-Box Account may have been established.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Certificate Administrator,
pursuant to Section 3.04(b), in trust for the Certificateholders, which shall be
entitled "Norwest Bank Minnesota, National Association, as Certificate
Administrator, in trust for The Chase Manhattan Bank, as Trustee, for the
benefit of Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, Lower-Tier
Distribution Account." Any such account or accounts shall be an Eligible
Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Loans, any REO Property with respect
thereto, such amounts as shall from time to time be held in the Collection
Account, the Interest Reserve Account, the REO Account, if any, and the
Lower-Tier Distribution Account, and except as otherwise provided in this
Agreement, all other property included in the Trust Fund that is not in the
Upper-Tier REMIC or designated as a grantor trust asset in the Preliminary
Statement hereto.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or any
successor Management Agreement between such parties.
"Manager": With respect to any Loan, any property manager
for the related Mortgaged Property or Mortgaged Properties.
"Maturity Date": With respect to any Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Loan by reason of
default thereunder, (ii) any grace period permitted by the related Note or (iii)
any modification, waiver or amendment of such Loan granted or agreed to by the
Servicer or the Special Servicer pursuant to Section 3.20 occurring prior to
such date of determination.
"Mezzanine Loan": Any loan constituting "Mezzanine Debt" or
a "Mezzanine Loan," as identified in Exhibit E.
"Mezzanine Loan Collateral": With respect to any Mezzanine Loan, any
stock, partnership interests, membership interests or other equity interest in
the related Borrower that has been pledged pursuant to such Mezzanine Loan.
"Mezzanine Loan Holder": With respect to any Mezzanine Loan,
the Holder or obligee thereof.
"Monthly Interest Distribution Amount": As to any Distribution Date
and any Class of Regular Certificates, other than the Class A-X Certificates,
the Accrued Certificate Interest Amount for such Class for such Distribution
Date, reduced by (i) such Class's share of (x) the Uncovered Prepayment Interest
Shortfall Amount for such Distribution Date and (y) Trust Fund indemnification
expenses incurred during the related Due Period pursuant to Sections 6.03 or
8.05 and (ii) any allocations to such Class of any Certificate Deferred Interest
for such Distribution Date. As to any Distribution Date and the Class A-X
Certificates, the Accrued Certificate Interest Amount for such Class for such
Distribution Date, reduced by such Class's share of (x) the Uncovered Prepayment
Interest Shortfall Amount for such Distribution Date and (y) Trust Fund
indemnification expenses incurred during the related Due Period pursuant to
Sections 6.03 or 8.05.
"Monthly Payment": With respect to any Loan (other than any REO
Loan) and any Due Date, the scheduled monthly payment of principal, if any, and
interest at the Mortgage Rate, excluding any Balloon Payment, which is payable
by the related Borrower on such Due Date under the related Note (as such terms
may be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Borrower or by reason of a modification, waiver or
amendment of such Loan granted or agreed to by the Servicer or Special Servicer
pursuant to Section 3.20), without regard to any acceleration of principal of
such Loan by reason of a default thereunder. With respect to an REO Loan, the
monthly payment that would otherwise have been payable on the related Due Date
had the related Note not been discharged, determined as set forth in the
preceding sentence and on the assumption that all other amounts, if any, due
thereunder are paid when due.
"Moody's": Moody's Investors Service, Inc., and its
successors in interest.
"Mortgage": With respect to any Loan, the mortgage, deed of trust,
deed to secure debt or other instrument securing a Note and creating a lien on
the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Loan that as of
any Due Date has been modified to reduce the rate at which interest is paid
currently below the related Mortgage Rate, to the extent interest accrued at a
rate equal to the amount of such reduction is capitalized, the excess, if any,
of (a) interest accrued on the Stated Principal Balance thereof during the
related Mortgage Interest Accrual Period at the Mortgage Rate over (b) the
interest portion of the related Monthly Payment or, if applicable, Assumed
Scheduled Payment due on such Due Date (calculated at the applicable reduced
rate).
"Mortgage File": With respect to any Loan, the following
documents:
(i) the original Note (or, with respect to Loan Nos. 88, 93 and
122, a lost note affidavit), bearing, or accompanied by, all prior and
intervening endorsements or assignments showing a complete chain of
endorsement or assignment from the applicable Mortgage Loan Originator
either in blank or to the applicable Mortgage Loan Seller, and further
endorsed (at the direction of the Depositor given pursuant to the related
Mortgage Loan Purchase Agreement) by the applicable Mortgage Loan Seller,
on its face or by allonge attached thereto, without recourse, to the order
of the Trustee in the following form: "Pay to the order of The Chase
Manhattan Bank, as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, without recourse, representation or
warranty, express or implied";
(ii) a duplicate original Mortgage or, if such Mortgage has been
returned by the related recording office, (A) an original, (B) a copy of a
certified copy or (C) with respect to the FINOVA Loans only, a copy
thereof from the applicable recording office and originals (or original or
copies of certified copies from the applicable recording office) of any
assignments thereof showing a complete chain of assignment from the
related Mortgage Loan Originator to the applicable Mortgage Loan Seller,
in each case with evidence of recording indicated thereon;
(iii) an original (or a copy if the original has been sent by the
Mortgage Loan Seller for recordation) assignment of the Mortgage, in
recordable form, either in blank or from the applicable Mortgage Loan
Seller to "The Chase Manhattan Bank, as trustee for the registered Holders
of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1";
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals or
copies of any assignments thereof showing a complete chain of assignment
from the applicable Mortgage Loan Originator of the Loan to the applicable
Mortgage Loan Seller, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in recordable
form, either in blank or from the Mortgage Loan Seller to "The Chase
Manhattan Bank, as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1";
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the originals or
copies of any assignments thereof showing a complete chain of assignment
from the applicable Mortgage Loan Originator of the Loan to the applicable
Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in recordable
form, either in blank or from the Mortgage Loan Seller or the applicable
Mortgage Loan Originator to "The Chase Manhattan Bank, as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-C1,"
which assignment may be included as part of an omnibus assignment covering
other documents relating to the Loan provided that such omnibus assignment
is effective under applicable law;
(viii) originals or copies of all (A) assumption, (B)
modification, (C) written assurance (except with respect to the FINOVA
Loans) and (D) substitution agreements, together with any evidence of
recording thereon, in those instances where the terms or provisions of the
Mortgage, Note or any related security document have been modified or the
Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, or if the policy has not yet
been issued, a binding written commitment or interim binder, relating to
such Loan;
(x) certified copies of the original or copy of any
guaranty of the obligations of the Mortgagor under the Loan;
(xi) certified copies of all UCC Financing Statements and
continuation statements or copies thereof sufficient to perfect (and
maintain the perfection of) the security interest held by the originator
of the Loan (and each assignee prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon), and original UCC assignments in a form
suitable for filing, sufficient to transfer such security interest to the
Trustee;
(xii) the original or copy of the power of attorney (with
evidence of recording thereon) granted by the Mortgagor if the Mortgage,
Note or other document or instrument referred to above was not signed by
the Mortgagor;
(xiii) with respect to any debt of a Borrower permitted under the
related Loan, a subordination agreement, standstill agreement or other
intercreditor agreement relating to such other debt, if any;
(xiv) if any related Lock-Box Agreement or Cash Collateral
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof;
with respect to the Cash Collateral Accounts and Lock-Box Accounts, if
any, a copy of the UCC-1 financing statements, if any, submitted for
filing with respect to the Mortgage Loan Seller's security interest in the
Cash Collateral Accounts and Lock-Box Accounts and all funds contained
therein (and UCC-2 or UCC-3 financing statements assigning such security
interest to the Trustee on behalf of the Certificateholders);
(xv) any Loan Agreement;
(xvi) the original Residual Value Policy, if any;
(xvii) copies of letters of credit, if any, relating to the
Loans;
(xviii) with respect to the Trust Fund Notes, the related
Co-Lender Agreement;
(xix) with respect to the L'Enfant Participation, the L'Enfant
Participation Agreement;
(xx) any environmental insurance policies;
(xxi) with respect to the Credit Lease Loans, copies of the
credit leases and all other documents or amendments related thereto;
(xxii) with respect to the FINOVA Loans, the original ground
lease, if any, or a copy thereof, or a certified copy of a franchise
agreement, if any; and
(xxiii) any additional documents required to be added to the
Mortgage File pursuant to Section 3.20(i).
With respect to the L'Enfant Participation, the preceding document
delivery requirements will be met by the delivery of copies of any mortgage loan
documents required to be delivered to the Lead Lender (other than the L'Enfant
Participation Agreement).
Notwithstanding the second preceding paragraph above, whenever the
term "Mortgage File" is used to refer to documents actually received by the
Custodian, on the Trustee's behalf, such term shall not be deemed to include
such documents and instruments required to be included therein unless they are
actually so received.
"Mortgage Interest Accrual Period": With respect to any Loan, the
period during which interest accrues pursuant to the related Note.
"Mortgage Loan Originator": Any institution that originated
a Loan.
"Mortgage Loan Purchase Agreement": Either of the CSFB
Mortgage Loan Purchase Agreement or the MS Mortgage Loan Purchase
Agreement.
"Mortgage Loan Schedule": The list of Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Loan:
(i) the loan number (as specified in Annex A to the
Prospectus Supplement);
(ii) the property name;
(iii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iv) the Mortgage Rate in effect at the Cut-off Date;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) remaining term to stated maturity, (b) Maturity Date
and (c) with respect to each ARD Loan, the Anticipated Repayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(xi) [Reserved];
(xii) the Loan interest accrual method;
(xiii) the applicable Primary Servicing Fee Rate;
(xiv) the Due Date;
(xvi) whether such loan is an ARD Loan;
(xvi) whether the Loan is subject to defeasance;
(xvii) whether such Loan has the benefit of a Residual
Value Policy;
(xviii) with respect to the Credit Lease Loans, the
Guarantor; and
(xix) [Reserved].
Such Mortgage Loan Schedule also shall set forth the aggregate of
the amounts described under clause (vii) above for all of the Loans. Such list
may be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Seller": Either the CSFB Mortgage Loan Seller
or the MS Mortgage Loan Seller.
"Mortgage Pass-Through Rate": With respect to any Loan that provides
for calculations of interest based on a 360-day year composed of twelve months
of 30 days each for any Mortgage Interest Accrual Period, the Net Mortgage Rate
thereof. With respect to any Loan that provides for calculations of interest
based on a 360-day year and the actual number of days elapsed, (a) for any
Mortgage Interest Accrual Period relating to an Interest Accrual Period
beginning in any January, February, April, June, September and November and in
any December occurring in a year immediately preceding any year that is not a
leap year, the Net Mortgage Rate thereof or (b) for any Mortgage Interest
Accrual Period relating to any Interest Accrual Period beginning in any March,
May, July, August and October and in any December occurring in a year
immediately preceding a year that is a leap year, the product of the Net
Mortgage Rate thereof and a fraction whose numerator is 31 and whose denominator
is 30.
"Mortgage Rate": With respect to: (i) any Loan on or prior to its
Maturity Date, the annual rate at which interest is scheduled (in the absence of
a default) to accrue on such Loan from time to time in accordance with the
related Note and applicable law; (ii) any Loan after its Maturity Date, the
annualized rate described in clause (i) above determined without regard to the
passage of such Maturity Date; and (iii) any REO Loan, the annualized rate
described in clause (i) or (ii), as applicable, above, determined as if the
predecessor Loan had remained outstanding. For purposes of calculating Mortgage
Pass-Through Rates and the Weighted Average Net Mortgage Rate, the Mortgage Rate
for any Loan whose interest rate is reduced will be the Mortgage Rate of such
Loan without taking into account any reduction in the interest rate by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of its
equitable powers or any reduction in the interest rate resulting from a
work-out.
"Mortgaged Property": The underlying real property (including any
REO Property) that secures a Loan, in each case consisting of a parcel or
parcels of land improved by a commercial and/or multifamily building or
facility, together with any personal property, fixtures, leases and other
property or rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Note, including, without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Note.
"MS Environmental Policy Insurer": Kemper Environmental.
"MS Loans": The Loans transferred to the Depositor pursuant
to the MS Mortgage Loan Purchase Agreement.
"MS Mortgage Loan Purchase Agreement": With respect to the MS Loans,
the agreement between the Depositor and the MS Mortgage Loan Seller, dated as of
October 11, 1999, relating to the transfer of the MS Mortgage Loan Seller's
right, title and interest in and to the MS Loans.
"MS Mortgage Loan Seller": Morgan Stanley Mortgage Capital Inc., a
New York corporation, and its successors in interest.
"Net Investment Earnings": With respect to any of the Collection
Account, any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account, any Servicing Account or the REO Account, for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest and other income realized during
such period on funds relating to the Trust Fund held in such account exceeds the
aggregate of all losses, if any, incurred during such period in connection with
the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any of the Collection
Account, any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account, any Servicing Account or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all losses, if any, incurred during such period
in connection with the investment of funds relating to the Trust Fund held in
such account in accordance with Section 3.06 exceeds the aggregate of all
interest and other income realized during such period on such funds.
"Net Mortgage Pass-Through Rate": With respect to any Loan and any
Distribution Date, the Mortgage Pass-Through Rate for such Loan for the related
Interest Accrual Period minus the sum of the Servicing Fee Rate, the Trustee Fee
Rate and the Certificate Administrator Fee Rate.
"Net Mortgage Rate": With respect to any Interest Accrual Period and
any Loan, a per annum rate equal to the Mortgage Rate for such Loan as of the
Cut-off Date minus the related Primary Servicing Fee Rate.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, the total operating revenues derived from such
Mortgaged Property during such period, minus the total operating expenses
incurred in respect of such Mortgaged Property during such period, other than
(i) non-cash items such as depreciation, (ii) amortization, (iii) actual capital
expenditures and (iv) debt service on the related Loan.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust Fund has the right to
renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Servicer or the
Special Servicer containing substantially the information described in Exhibit
G-8 attached hereto.
"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
Administrator with an effective Internal Revenue Service Form 4224 (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Administrator 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.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance or any portion thereof.
"Nonrecoverable P&I Advance": The portion of any P&I Advance
(including interest accrued thereon at the Reimbursement Rate) previously made
or proposed to be made in respect of a Loan or REO Loan which, in the judgment
(in accordance with the Servicing Standard) of the Servicer, the Special
Servicer or the Trustee, as applicable, will not be ultimately recoverable,
together with any accrued and unpaid interest thereon, from Late Collections or
any other recovery on or in respect of such Loan or REO Loan. The determination
by the Servicer, the Special Servicer or the Trustee, as applicable, that it has
made (or, in the case of a determination made by the Special Servicer, that the
Servicer has made) a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered to (i) the Trustee and the
Depositor, in the case of the Servicer, (ii) to the Servicer in the case of the
Special Servicer, and (iii) to the Depositor and the Servicer, in the case of
the Trustee, setting forth such determination of nonrecoverability and the
considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall include but
shall not be limited to information, to the extent available, such as related
income and expense statements, rent rolls, occupancy status, property
inspections, and shall include an Appraisal of the related Loan or Mortgaged
Property, the cost of which Appraisal shall be advanced by the Servicer as a
Servicing Advance). The Trustee shall be entitled to conclusively rely on the
Servicer's determination that a P&I Advance is nonrecoverable. The Servicer and
the Trustee shall be entitled to conclusively rely on the Special Servicer's
determination that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": The portion of any Servicing
Advance (including interest accrued thereon at the Reimbursement Rate)
previously made or proposed to be made in respect of a Loan or REO Property
which, in the judgment (in accordance with the Servicing Standard) of the
Servicer, the Special Servicer or the Trustee, as the case may be, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon,
from Late Collections or any other recovery on or in respect of such Loan or REO
Property. The determination by the Servicer, the Special Servicer or the
Trustee, as the case may be, that it has made (or, in the case of a
determination made by the Special Servicer, that the Servicer has made) a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by
an Officer's Certificate delivered to (i) the Trustee and the Depositor, in the
case of the Servicer, (ii) to the Servicer in the case of the Special Servicer,
and (iii) to the Depositor and the Servicer, in the case of the Trustee. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall include but
shall not be limited to information, to the extent available, such as related
income and expense statements, rent rolls, occupancy status and property
inspections, and shall include an Appraisal of the related Loan or Mortgaged
Property, the cost of which Appraisal shall be advanced by the Servicer as a
Servicing Advance). The Trustee will be entitled to conclusively rely on the
Servicer's determination that a Servicing Advance is nonrecoverable. The
Servicer and the Trustee shall be entitled to conclusively rely on the Special
Servicer's determination that a Servicing Advance is a Nonrecoverable Servicing
Advance.
"Note": The original executed note evidencing the indebtedness of a
Mortgagor under a Loan, together with any rider, addendum or amendment thereto.
"Notional Balance": For any date of determination and the Class A-X
Certificates, an amount equal to the sum of the Certificate Balances of the
Classes of Regular Certificates (other than the Class A-X Certificates) as of
the preceding Distribution Date (after giving effect to the distribution of
principal on such Distribution Date) or, in the case of the first Distribution
Date, the Cut-off Date.
"NRSRO": Nationally recognized statistical rating organization.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee.
"Operating Statement Analysis Report": With respect to each Loan and
REO Property, a report prepared by the Servicer or Special Servicer, as
applicable, substantially containing the information described in Exhibit G-7
attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may be
salaried counsel for the Depositor, the Servicer or the Special Servicer,
acceptable in form and delivered to the Trustee, except that any opinion of
counsel relating to (a) the qualification of either REMIC created hereunder as a
REMIC, (b) compliance with the REMIC Provisions or (c) the resignation of the
Depositor, the Servicer or the Special Servicer pursuant to Section 6.04 must be
an opinion of counsel that is in fact Independent of the Depositor, the Servicer
or the Special Servicer, as applicable.
"Optimal Interest Distribution Amount": As to any
Distribution Date and any Class of Regular Certificates, the sum of the
Monthly Interest Distribution Amount and the Unpaid Interest Shortfall Amount
for such Class for such Distribution Date.
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class A-X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Other Note": The Exchange Apartments Other Note or the
L'Enfant Other Note.
"Other Trust Fund": As defined in Section 2.01(g).
"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 Loan or REO Loan, any advance made by the
Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section
7.05.
"P&I Advance Date": The Business Day immediately prior to
each Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day immediately prior thereto.
"Pass-Through Rate": With respect to each Class of
Certificates, the respective per annum rate listed below:
Class A-1: Class A-1 Pass Through Rate
Class A-2: Class A-2 Pass Through Rate
Class A-X: Class A-X Pass Through Rate
Class B: Class B Pass Through Rate
Class C: Class C Pass Through Rate
Class D: Class D Pass Through Rate
Class E: Class E Pass Through Rate
Class F: Class F Pass Through Rate
Class G: Class G Pass Through Rate
Class H: Class H Pass Through Rate
Class J: Class J Pass Through Rate
Class K: Class K Pass Through Rate
Class L: Class L Pass Through Rate
Class M: Class M Pass Through Rate
Class N: Class N Pass Through Rate
Class O: Class O Pass Through Rate
"Penalty Charges": With respect to any Loan or REO Loan, any amounts
actually collected thereon from the Mortgagor that represent late payment
charges or Default Interest, other than a Prepayment Premium or Yield
Maintenance Charge.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance (or, in the case of the Class A-X Certificates, the Notional
Balance) of such Class of Certificates as of the Closing Date. With respect to a
Class V-1, Class V-2 or Residual Certificate, the percentage interest as set
forth on the face thereof.
"Permitted Institutional Transferee": With respect to any Mezzanine
Loan, any proposed transferee thereof that is (i) an affiliate of the
Underwriters; (ii) an insurance company, bank, savings and loan association,
trust company, commercial credit corporation, pension plan, pension fund or
pension fund advisory firm, mutual fund or other investment company,
governmental entity or plan, "qualified institutional buyer" within the meaning
of Rule 144A under the Securities Act (other than a broker/dealer) or an
institution substantially similar to any of the foregoing, in each case under
this clause (ii) having at least $250,000,000 in capital/statutory surplus or
shareholder's equity and at least $12,000,000,000 in total assets, and having a
long term credit rating from a NRSRO of at least "BBB" and being experienced in
making commercial real estate loans, as determined by the Special Servicer; or
(iii) any entity wholly owned by any one or more institutions meeting the
criteria in clause (ii). The Special Servicer shall obtain from the proposed
transferee, and shall be entitled to rely on, (i) an officer's certificate of a
proposed transferee that such transferee satisfies the requirements of this
definition and (ii) in the case of any proposed transferee that is an entity
described in and meeting the criteria in clause (ii) of the immediately
preceding sentence, the most recent financial statements of such transferee.
"Permitted Investments": Any one or more of the following
obligations or securities, regardless whether issued by the Depositor, the
Servicer, the Special Servicer, the Trustee or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America, the obligations maturing one year or less after the date of
issuance and which are backed by the full faith and credit of the United
States of America; provided that any obligation of, or guarantee by, FNMA
or FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC,
shall be a Permitted Investment only if such investment would not result
in the downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate as confirmed in writing;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in one year or less after the date of issuance and
are issued or held by any depository institution or trust company
incorporated or organized under the laws of the United States of America
or any State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or other
short-term debt obligations of such depository institution or trust
company are rated at least "D-1+" by DCR (or, if not rated by DCR, an
equivalent rating from at least two other NRSROs), "P-1" by Moody's and
"F-1+" by Fitch (if rated by Fitch) or would not result in the
downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as confirmed in writing
by such Rating Agency;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above;
(iv) debt obligations maturing in one year or less bearing interest
or sold at a discount issued by any corporation incorporated under the
laws of the United States of America or any state thereof, which
securities have (i) ratings from DCR at least equal to "AAA" (or, if not
rated by DCR, an equivalent rating from at least two other NRSROs),
ratings from Fitch at least equal to "AA-" and from Moody's at least equal
to the minimum maturity-based ratings described below or (ii) such other
ratings (as confirmed by the applicable Rating Agency in writing) as will
not result in a downgrade, qualification or withdrawal of the then-current
rating of the Certificates that are currently being rated by such Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount of
securities issued by such corporation and held in the accounts established
hereunder to exceed 10% of the sum of the aggregate principal balance and
the aggregate principal amount of all Permitted Investments in such
accounts;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) payable on demand or on a
specified date maturing in one year or less after the date of issuance
thereof and which is rated at least "D-1+" by DCR (or, if not rated by
DCR, an equivalent rating from at least two other NRSROs), "P-1" by
Moody's and "F-1+" by Fitch;
(vi) units of investment funds that maintain a constant net asset
value, money market funds, rated "AAA" by DCR (or, if not rated by DCR, an
equivalent rating from at least two other NRSROs), "Aaa" by Moody's and
"AAA" by Fitch;
(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; and
(viii) demand and time deposits of Wells Fargo Bank, National
Association (or Wells Fargo & Company), provided that the long-term
unsecured obligations of Wells Fargo Bank, National Association (or Wells
Fargo & Company) are rated "A" or better by DCR and Fitch and "Aa2" or
better by Moody's;
provided that such instrument or security qualifies as a "cashflow investment"
pursuant to Section 860G(a)(6) of the Code and that (A) in each case, the
minimum maturity-based ratings by Moody's for investments are: (i) if the
investment matures within one month, "A2" or "P-1"; (ii) if the investment
matures more than one month later but within three months, "A1" and "P-1"; (iii)
if the investment matures more than three months but within six months, "Aa3"
and "P-1"; and (iv) if the investment matures more than six months later, "Aaa"
and "P-1"; (B) no such instrument shall be a Permitted Investment (i) if such
instrument evidences principal and interest payments derived from obligations
underlying such instrument and the interest payments with respect to such
instrument provide a yield to maturity at the time of acquisition of greater
than 120% of the yield to maturity at par of such underlying obligations or (ii)
if such instrument may be redeemed at a price below the purchase price; and (C)
no amount beneficially owned by any REMIC created hereunder (even if not yet
deposited in the Trust) may be invested in investments (other than money market
funds) treated as equity interests for federal income tax purposes, unless the
Servicer receives an Opinion of Counsel, at its own expense, to the effect that
such investment will not adversely affect the status of any REMIC created
hereunder as a REMIC under the Code or result in imposition of a tax on any
REMIC created hereunder. Permitted Investments that are subject to prepayment or
call may not be purchased at a price in excess of par.
"Permitted Mezzanine Loan Holder": With respect to any Mezzanine
Loan, the related Mortgage Loan Seller, any Permitted Institutional Transferee
or any other Mezzanine Loan Holder with respect to which each Rating Agency has
confirmed in writing to the Special Servicer and the Trustee that the holding of
such Mezzanine Loan by such Person would not cause a qualification, downgrade or
withdrawal of any of such Rating Agency's then-current ratings on the
Certificates.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(e).
"Policy Escrow Account": As defined in Section 4.03(f)(iii).
"Prepayment Assumption": With respect to all Loans other than the
ARD Loans, the assumption that all payments required to be made on such Loans
according to their contractual terms (including repayment in full on their
respective maturity dates) are so made. With respect to all ARD Loans, the
assumption that the ARD Loans will be fully prepaid on their related Anticipated
Repayment Dates.
"Prepayment Date": With respect to any Principal Prepayment,
the date on which such Principal Prepayment is to be made.
"Prepayment Interest Excess": With respect to any Distribution Date,
the aggregate amount, with respect to all Loans that were subject to Principal
Prepayment in full or in part, or as to which Insurance and Condemnation
Proceeds were received by the Servicer or Special Servicer for application to
such Loans, in each case after the Due Date in the month of such Distribution
Date and on or prior to the related Determination Date, the amount of interest
accrued at the Mortgage Rate for such Loans on the amount of such Principal
Prepayments or Insurance and Condemnation Proceeds after the Mortgage Interest
Accrual Period relating to such Due Date and accruing in the manner set forth in
the Loan Documents relating to such Loans, to the extent such interest is
collected by the Servicer or the Special Servicer.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Loan that was subject to a Principal Prepayment in full or in
part, or as to which Insurance and Condemnation Proceeds were received by the
Servicer or Special Servicer for application to such Loan, in each case after
the Determination Date in the calendar month preceding such Distribution Date
but prior to the Due Date in the related Due Period, the amount of interest that
would have accrued at the Net Mortgage Pass-Through Rate for such Loan on the
amount of such Principal Prepayment or Insurance and Condemnation Proceeds
during the period commencing on the date as of which such Principal Prepayment
or Insurance and Condemnation Proceeds were applied to the unpaid principal
balance of the Loan and ending on (and including) the day immediately preceding
such Due Date.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Primary Servicer": Any of Heartland Bank, National Consumer
Cooperative Bank, ORIX Real Estate Capital Markets, LLC or First Union
National Bank, or any successors thereto.
"Primary Servicing Agreement": The Sub-Servicing Agreement dated as
of October 11, 1999, by and among the Servicer and Heartland Bank, National
Consumer Cooperative Bank and ORIX Real Estate Capital Markets, LLC, as Primary
Servicers.
"Primary Servicing Fee": With respect to each Loan, the fee payable
to the related Primary Servicer under the Primary Servicing Agreement or to the
Servicer pursuant to Section 3.11(a), based on the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Loan primarily
serviced by a Primary Servicer, the per annum rate set forth on the Mortgage
Loan Schedule with respect thereto, and, with respect to each Loan primarily
serviced by the Servicer, 0.05% per annum.
"Principal Distribution Amount": As to any Distribution Date, the
sum of (i) the amount collected or otherwise received on or with respect to
principal of the Loans during the related Due Period and (ii) that portion of
the P&I Advance, if any, made in respect of principal of the Loans with respect
to such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Loan that is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment, other than any amount paid in connection with the release of the
related Mortgaged Property through defeasance.
"Private Certificate": Any Class G, Class H, Class J,
Class K, Class L, Class M, Class N or Class O Certificate.
"Private Definitive Certificate": Any Private Certificate
other than a Private Global Certificate.
"Private Global Certificates": Any Class G Book-Entry Certificate or
Class H Book-Entry Certificate, so long as such Certificates are in book-entry
form.
"Privileged Person": Each holder of a Certificate, each of the
parties to this Agreement, each of the Rating Agencies, each of the
Underwriters, any Person identified to the Certificate Administrator as a
Certificate Owner or prospective purchaser of a Certificate upon receipt from
such Certificate Owner or prospective purchaser of an investor certification
(which may be in electronic form), the form of which is attached hereto as
Exhibit I, and any other Person designated by the Depositor. The Certificate
Administrator shall provide all Privileged Persons with access to certain
restricted information on the Website (in the case of any Certificate Owner or
prospective purchaser, upon receipt of the Investor Certification) through the
use of a password.
"Property File": A file prepared by the Servicer or the Special
Servicer with respect to Specially Serviced Loans containing substantially the
information described in Exhibit G-11 hereto.
"Prospectus": The Prospectus dated October 12, 1999, as
supplemented by the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement dated
November 4, 1999, relating to the offering of the Public Certificates.
"Public Certificate": Any Class A-1, Class A-2, Class A-X,
Class B, Class C, Class D, Class E or Class F Certificate.
"Purchase Price": With respect to any Loan to be purchased by a
Mortgage Loan Seller pursuant to Section 7 of the related Mortgage Loan Purchase
Agreement or by FINOVA or FINOVA Capital pursuant to Section 9.3 of the related
FINOVA Mortgage Loan Purchase Agreement, by the Servicer or the Special Servicer
pursuant to Section 3.18(b), or by either Mortgage Loan Seller, the Special
Servicer, the Holders of a majority of the Percentage Interests in the
Controlling Class or the Servicer pursuant to Section 9.01 or to be otherwise
sold pursuant to Section 3.18(c) or Section 3.25(e), a price equal to the sum of
the following:
(i) the outstanding principal balance of such Loan as of
the date of purchase;
(ii) all accrued and unpaid interest on such Loan at the related
Mortgage Rate in effect from time to time to but not including the Due
Date in the Due Period of purchase (which includes unpaid Servicing Fees
and Primary Servicing Fees);
(iii) all related unreimbursed Servicing Advances plus accrued and
unpaid interest on related Advances at the Reimbursement Rate; and
(iv) if such Loan is being purchased by a Mortgage Loan Seller
pursuant to Section 7 of the related Mortgage Loan Purchase Agreement or
by FINOVA or FINOVA Capital pursuant to Section 9.3 of the related FINOVA
Mortgage Loan Purchase Agreement, all reasonable out-of-pocket expenses
reasonably incurred or to be incurred by the Servicer, the Special
Servicer, the Depositor, the Certificate Administrator 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.
"QIB Investment Representation Letter": As defined in
Section 5.02(b).
"Qualified Bidder": A Person (i) which has a servicer rating equal
to or better than the rating of Wells Fargo Bank, National Association, as of
the Closing Date, and (ii) with respect to which each Rating Agency has
confirmed in writing that the appointment of such Person as Servicer hereunder,
as applicable, would not, in and of itself, result in the withdrawal, downgrade
or qualification (if applicable) of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Loan, REO Loan or REO
Property, an insurance company or security or bonding company qualified to write
the related Insurance Policy in the relevant jurisdiction with a minimum claims
paying ability rating of at least "A2" by Moody's, "A" by DCR (or, if not rated
by DCR, an equivalent rating from at least two other NRSROs) and "A" by Fitch if
then rated by Fitch, and (ii) with respect to the fidelity bond and errors and
omissions Insurance Policy required to be maintained pursuant to Section
3.07(c), an insurance company that has a claims paying ability rated no lower
than two ratings below the rating assigned to the then highest rated outstanding
Certificate, but in no event lower than "A" by Fitch if then rated by Fitch, "A"
by DCR (or, if not rated by DCR, an equivalent rating from at least two other
NRSROs) and "A2" by Moody's, or, in the case of clauses (i) and (ii), such other
rating as each Rating Agency shall have confirmed in writing will not cause such
Rating Agency to downgrade, qualify or withdraw the then-current rating assigned
to any of the Certificates that are then currently being rated by such Rating
Agency.
"Rated Final Distribution Date": As to each Class of Certificates,
other than the Class O Certificates, the Distribution Date occurring in
September 2041.
"Rating Agency": Each of DCR, Fitch, Moody's or their successors in
interest. If any of such rating agencies or any successor thereto ceases to
remain in existence, "Rating Agency" shall be deemed to refer to any other
nationally recognized statistical rating agency, or other comparable Person,
designated by the Depositor to replace the rating agency that has ceased to
exist. Notice of such designation shall be given to the Trustee and the
Servicer, and the specific ratings of DCR, Fitch and Moody's herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date other than the
first Distribution Date, the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs and, with respect to
the first Distribution Date, the Closing Date.
"Reduction Rate": A rate per annum equal to the average of the
Pass-Through Rates of each Class to which an Appraisal Reduction has been
allocated (in accordance with Section 4.05 hereof), weighted on the basis of the
amount of Appraisal Reductions allocated to such Class.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any Public Certificate or Private
Certificate.
"Regular Yield Protection Payment Amount": As defined in the
definition of Yield Protection Payment.
"Regulation S Global Certificate": As defined in
Section 5.01(a).
"Regulation S Investment Representation Letter": As defined
in Section 5.02(b).
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money Rates" Section of The Wall Street
Journal (or, if such Section or publication is no longer available, such other
comparable publication as is determined by the Trustee in its sole discretion)
as may be in effect from time to time, or, if the "Prime Rate" no longer exists,
such other comparable rate (as determined by the Trustee in its reasonable
discretion) as may be in effect from time to time.
"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 Certificates 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 J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
Class L Certificate Class LL Uncertificated Interest
Class M Certificate Class LM Uncertificated Interest
Class N Certificate Class LN Uncertificated Interest
Class O Certificate Class LO Uncertificated Interest
"Related Components" and "Related Uncertificated Lower-Tier
Interest": For such Classes of Uncertificated Lower-Tier Interests, the related
Components (which are represented by the Class A-X Certificates) set forth below
and for the following Components, the related Class of Uncertificated Lower-Tier
Interests set forth below:
Related Upper-Tier Related Uncertificated
Regular Interest Lower-Tier Interest
- ---------------- -------------------
Class LA-1 Component Class LA-1 Uncertificated Interest
Class LA-2 Component Class LA-2 Uncertificated Interest
Class LB Component Class LB Uncertificated Interest
Class LC Component Class LC Uncertificated Interest
Class LD Component Class LD Uncertificated Interest
Class LE Component Class LE Uncertificated Interest
Class LF Component Class LF Uncertificated Interest
Class LG Component Class LG Uncertificated Interest
Class LH Component Class LH Uncertificated Interest
Class LJ Component Class LJ Uncertificated Interest
Class LK Component Class LK Uncertificated Interest
Class LL Component Class LL Uncertificated Interest
Class LM Component Class LM Uncertificated Interest
Class LN Component Class LN Uncertificated Interest
Class LO Component Class LO Uncertificated Interest
"Remaining Principal Distribution Amount": As to any Distribution
Date and any Class of Subordinate Certificates, the amount, if any, by which the
Principal Distribution Amount for such Distribution Date exceeds the aggregate
amount distributed in respect of such amounts on such Distribution Date to all
Classes senior to such Class.
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of Subtitle A of the Code, and
related provisions, and temporary and final regulations and, to the extent not
inconsistent with such temporary and final regulations, proposed regulations,
and published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from
any Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar Class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Lennar
Partners, Inc., as Special Servicer, in trust for The Chase Manhattan Bank, as
Trustee, for Holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, REO Account." Any
such account or accounts shall be an Eligible Account.
"REO Acquisition": With respect to any Loan, the acquisition
by the Trust Fund of REO Property related to such Loan.
"REO Acquisition Date": The date of the Trust Fund's acquisition for
federal income tax purposes of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO
Property pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Loan deemed to be outstanding with respect to each
REO Property. Each REO Loan shall be deemed to be outstanding for so long as the
related REO Property (i) remains part of the Trust Fund, (ii) provides for
Assumed Scheduled Payments on each Due Date therefor and (iii) otherwise has the
same terms and conditions as its predecessor Loan, including, without
limitation, with respect to the calculation of the Mortgage Rate in effect from
time to time (such terms and conditions to be applied without regard to the
default on such predecessor Loan). Each REO Loan shall be deemed to have an
initial outstanding principal balance and Stated Principal Balance equal to the
outstanding principal balance and Stated Principal Balance, respectively, of its
predecessor Loan as of the related REO Acquisition Date. All amounts due and
owing in respect of the predecessor Loan as of the related REO Acquisition Date,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of an REO Loan. All amounts payable or reimbursable to
the Servicer, the Special Servicer or the Trustee, as applicable, in respect of
the predecessor Loan as of the related REO Acquisition Date, including, without
limitation, any unpaid Special Servicing Fees and Servicing Fees and any
unreimbursed Advances, together with any interest accrued and payable to the
Servicer or the Trustee in respect of such Advances in accordance with Section
3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the
Servicer or the Trustee in respect of an REO Loan. Collections in respect of
each REO Loan (exclusive of amounts to be applied to the payment of, or to be
reimbursed to the Servicer or the Special Servicer for the payment of, the costs
of operating, managing and maintaining the related REO Property) shall be
treated: first, as a recovery of accrued and unpaid Advances, Primary Servicing
Fees and Servicing Fees and related interest due the Servicer or the Trustee, as
applicable; second, as a recovery of accrued and unpaid interest on such REO
Loan at the related Mortgage Rate to but not including the Due Date in the Due
Period of receipt; third, as a recovery of principal of such REO Loan to the
extent of its entire unpaid principal balance; and fourth, in accordance with
the Servicing Standard of the Servicer, as a recovery of any other amounts due
and owing in respect of such REO Loan, including, without limitation, Yield
Maintenance Charges, Prepayment Premiums and Penalty Charges.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of and in the name of the Trustee (or its nominee) for the
benefit of the Certificateholders through foreclosure, acceptance of a deed in
lieu of foreclosure or otherwise in accordance with applicable law in connection
with the default or imminent default of a Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property (including, with respect to
the L'Enfant Participation, if the Lead Lender thereof has foreclosed upon the
related Mortgaged Property, the pro rata portion allocable to the L'Enfant
Participation of any amount remitted by the Lead Lender pursuant to the related
Co-Lender Agreement constituting revenues received with respect to such
foreclosed Mortgaged Property, which do not constitute Liquidation Proceeds).
"REO Status Report": A report prepared by the Servicer based on
information provided by the Special Servicer, substantially containing the
information described in Exhibit G-5 attached hereto, setting forth, among other
things, with respect to each REO Property that was included in the Trust Fund as
of the close of business on the Determination Date immediately preceding the
preparation of such report, (i) the acquisition date of such REO Property, (ii)
the amount of income collected with respect to any REO Property net of related
expenses and other amounts, if any, received on such REO Property during the
related Due Period and (iii) the value of the REO Property based on the most
recent appraisal or other valuation thereof available to the Special Servicer as
of such date of determination (including any prepared internally by the Special
Servicer).
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Residual Value Insurer": R.V.I. America Insurance Company,
together with any assignee, successor or subsequent insurer.
"Residual Value Policy": Any insurance policy issued by the Residual
Value Insurer to insure against any diminution in the value of the related
Mortgaged Properties at the maturity of the related Loan as a result of changes
in market conditions.
"Residual Value Policy Exposure": As defined in Section
4.03(f)(i).
"Residual Value Policy Termination Event": As defined in
Section 3.30(e).
"Responsible Officer": When used with respect to the initial Trustee
and Certificate Administrator, any Vice President, Assistant Vice President,
corporate trust officer or assistant corporate trust officer of the Trustee or
Certificate Administrator, as applicable, having direct responsibility for the
administration of this Agreement, and with respect to any successor Trustee or
Certificate Administrator, as applicable, any officer or assistant officer in
the corporate trust department of the Trustee or Certificate Administrator, as
applicable, or any other officer of the Trustee or Certificate Administrator, as
applicable, customarily performing functions similar to those performed by any
of the above designated officers to whom a particular matter is referred by the
Trustee or Certificate Administrator, as applicable, because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Servicer Reports": Collectively, the Comparative
Financial Status Report, the Servicer Watch List, the Operating Statement
Analysis Report, the Asset Status Report and NOI Adjustment Worksheet.
"Revised Rate": With respect to the Loans, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for each
applicable Loan, as calculated and as set forth in the related Loan.
"Rule 144A Global Certificate": As defined in
Section 5.01(a).
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage or
executed separately, creating in favor of the holder of such Mortgage a security
interest in the personal property constituting security for repayment of such
Loan.
"Servicer": Wells Fargo Bank, National Association, a national
banking association and its successor in interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicer Remittance Date": With respect to any Distribution
Date, the Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer
and/or the Special Servicer in such media as may be agreed upon by the Servicer,
the Special Servicer and the Certificate Administrator containing such
information regarding the Loans as will permit the Certificate Administrator to
calculate the amounts to be distributed pursuant to Section 4.01 and to furnish
statements to Certificateholders pursuant to Section 4.02, including information
on the outstanding principal balances of each Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Certificate Administrator may from time to time agree.
"Servicer Watch List": A report prepared by the Servicer
substantially containing the information described in Exhibit G-6 attached
hereto, setting forth, among other things, a description of any Loan that, as of
the Determination Date immediately preceding the preparation of such report, is
in jeopardy of becoming a Specially Serviced Loan (as described in Section
3.12(e)).
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer in connection with the
servicing and administering of (a) a Loan in respect of which a default,
delinquency or other unanticipated event has occurred or is reasonably
foreseeable (including any reimbursements to the L'Enfant Servicer on account of
the Trust Fund's pro rata portion of any servicing advance made by the L'Enfant
Servicer on account of the L'Enfant Participation) or (b) an REO Property,
including, in the case of both (a) and (b), but not limited to, the cost of (i)
compliance with the Servicer's obligations set forth in Section 3.03(c), (ii)
the preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of
the nature described in clauses (i) through (iv) of the definition of
"Liquidation Proceeds," (iv) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including foreclosures, (v) the operation,
leasing, management, maintenance and liquidation of any REO Property, (vi) any
Appraisal, and (vii) any "forced placed" insurance policy purchased.
"Servicing Fee": With respect to each Loan and REO Loan, the fee
payable to the Servicer pursuant to the first paragraph of Section 3.11(a).
"Servicing Fee Rate": With respect to each Loan, Specially Serviced
Loan, and REO Loan, a rate equal to 0.05% per annum computed on the basis of a
360-day year consisting of twelve 30-day months on the Stated Principal Balance
of the related Loan.
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Loans, whose name and specimen signature appear on a list of
servicing officers furnished by the Servicer to the Trustee and the Depositor on
the Closing Date as such list may be amended from time to time thereafter.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Loan, the
occurrence of any of the following events:
(i) a payment default shall have occurred on such Loan at
its Maturity Date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60 days
or more delinquent; or
(iii) the Servicer determines that a payment default has occurred or
is imminent and is not likely to be cured by the related Mortgagor within
60 days; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs
is entered against the related Mortgagor; provided that if such decree or
order is discharged or stayed within 60 days of being entered, such Loan
shall not be a Specially Serviced Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect thereto); or
(v) the related Mortgagor shall file for or consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or relating to all or
substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property; or
(viii) any other default has occurred which has materially and
adversely affected the value of the related Loan and has continued
unremedied for the applicable grace period specified in the related
Mortgage; or
(ix) the occurrence of a Residual Value Policy Termination Event.
"Significant Loan": At any time, (a) any Loan (i) whose principal
balance is $20,000,000 or more at such time or (ii) that is (x) a Loan, (y) part
of a group of Crossed Loans or (z) part of a group of Loans made to affiliated
Borrowers that, in each case, in the aggregate, represents 5% or more of the
aggregate outstanding principal balance of all of the Loans at such time or (b)
any one of the ten largest Loans, (which for the purposes of this definition
shall include groups of Crossed Loans and groups of Loans made to affiliated
Borrowers) by outstanding principal balance at such time.
"Similar Law": As defined in Section 5.02(e).
"Single-Purpose Entity" or "SPE": A person, other than an
individual, whose organizational documents provide that it is formed solely for
the purpose of owning and pledging Defeasance Collateral; does not engage in any
business unrelated to such Defeasance Collateral; does not have any assets other
than those related to its interest in the Defeasance Collateral and may not
incur any indebtedness other than as required to assume the defeased obligations
under the related Note; it shall maintain its own books, records and accounts,
in each case which are separate and apart from the books, records and accounts
of any other Person; it shall hold regular meetings, as appropriate, to conduct
its business, and shall observe all entity level formalities and recordkeeping;
it shall conduct business in its own name and use separate stationery, invoices
and checks; it may not guarantee or assume the debts or obligations of any other
Person; it shall not commingle its assets or funds with those of any other
Person; it shall pay its obligations and expenses from its own funds and
allocate and charge reasonably and fairly any common employees or overhead
shared with Affiliates; it shall prepare separate tax returns and financial
statements or, if part of a consolidated group, shall be shown as a separate
member of such group; it shall transact business with Affiliates on an
arm's-length basis pursuant to written agreements; and it shall hold itself out
as being a legal entity, separate and apart from any other Person. The SPE's
organizational documents shall provide that any dissolution and winding up or
insolvency filing for such entity requires the unanimous consent of all partners
or members, as applicable, and that such documents may not be amended with
respect to the Single-Purpose Entity requirements so long as any Certificates
are outstanding.
"Special Events": As defined in Section 4.02(b).
"Special Servicer": Lennar Partners, Inc., a Florida
corporation, or any successor special servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and REO Loan, the fee payable to the Special Servicer pursuant to the first
paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% per annum computed on the basis of the
Stated Principal Balance of the related Loan and for the same period for which
any related interest payment on the related Specially Serviced Loan is computed.
"Specially Serviced Loan": As defined in Section 3.01(a).
"Startup Day": The Closing Date.
"State Tax Laws": The state and local tax laws of the States of New
York, California, Florida and Washington, as well as any state the applicability
of which to the Trust Fund or the REMICs shall have been confirmed to the
Trustee in writing either by the delivery to the Trustee of an Opinion of
Counsel to such effect (which Opinion of Counsel shall not be at the expense of
the Trustee), or by the delivery to the Trustee of a written notification to
such effect by the taxing authority of such state.
"Stated Principal Balance": With respect to any Loan (other than an
REO Loan), as of any date of determination, an amount equal to (x) the Cut-off
Date Principal Balance of such Loan, plus (y) any Mortgage Deferred Interest
added to the principal balance of such Loan on or before the end of the
immediately preceding Due Period, minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Loan after the Cut-off Date, to the extent received from the Mortgagor or
advanced by the Servicer or Trustee, as applicable, and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such Loan
after the Cut-off Date, to the extent distributed to Certificateholders on
or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such Loan after
the Cut-off Date, to the extent distributed to Certificateholders on or
before such date of determination;
(iv) any reduction in the outstanding principal balance of such
Loan resulting from a Deficient Valuation that occurred prior to the end
of the Due Period for the most recent Distribution Date; and
(v) any reduction in the outstanding principal balance of such
Loan due to a modification by the Special Servicer pursuant to Section
3.20(d).
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Loan as of
the related REO Acquisition Date, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to
the predecessor Loan on or after the related REO Acquisition Date, to the
extent distributed to Certificateholders on or before such date of
determination; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Loan or an REO Loan shall be deemed to be part of the Trust Fund
and to have an outstanding Stated Principal Balance until the Distribution Date
on which the payments or other proceeds, if any, received in connection with a
Liquidation Event in respect thereof are to be distributed to
Certificateholders.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Sub-Servicer": Any Person with which the Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement, including any Primary
Servicer.
"Sub-Servicing Agreement": The subservicing agreements between the
Servicer or the Special Servicers, as the case may be, and any Sub-Servicer
relating to servicing and administration of Loans by such Sub-Servicer as
provided in Section 3.22, including any Primary Servicing Agreement.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N or Class
O Certificate.
"Successful Bidder": As defined in Section 7.01(e).
"Successor Manager": As defined in Section 3.19(c).
"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 REMIC created hereunder due to its classification
as a REMIC under the REMIC Provisions, and Forms 1041 for the portions of the
Trust Fund intended to be treated as a grantor trust for federal income tax
purposes, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal or State Tax Laws.
"Termination Notice": As defined in Section 7.01(b).
"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(g)(i)(B).
"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(g)(i)(D).
"Treasury Rate": With respect to any Principal Prepayment made on a
Loan, the yield calculated by the linear interpolation of the yields reported in
Federal Reserve Statistical Release H.15 Selected Interest Rates (the "Release")
under the heading "U.S. government securities" and the subheading "Treasury
constant maturities" for the week ending immediately before the related
Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one
longer and one shorter) most nearly approximating the Maturity Date of such Loan
(or, if such Loan is an ARD Loan, the related Anticipated Repayment Date). If
the Release is no longer published, the Servicer shall select a comparable
publication to determine the Treasury Rate in its reasonable discretion.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Loans subject to this Agreement
and all interest and principal received or receivable on or with respect to the
Loans (other than payments of principal and interest due and payable on the
Loans on or before the Cut-off Date and Principal Prepayments paid on or before
the Cut-off Date), together with all documents included in the related Mortgage
Files; (ii) such funds or assets as from time to time are deposited in the
Collection Account, the Distribution Accounts, the Excess Interest Distribution
Account, the Yield Protection Payment Account, the Interest Reserve Account and,
if established, the REO Account; (iii) any REO Property; (iv) the rights of the
mortgagee under all Insurance Policies with respect to the Loans, (v) the
Uncertificated Lower-Tier Interests and (vi) the rights of the Depositor under
the Mortgage Loan Purchase Agreements.
"Trust Fund Note": With respect to the Exchange Apartments Loan, the
Note included in the Trust Fund and with respect to the L'Enfant Participation,
the note related to the participation that is included in the Trust Fund.
"Trustee": The Chase Manhattan Bank, a New York banking corporation,
in its capacity as trustee and its successors in interest, or any successor
trustee appointed as herein provided.
"Trustee Fee": The fee to be paid to the Trustee as
compensation for the Trustee's activities under this Agreement.
"Trustee Fee Rate": A rate equal to 0.0006% per annum computed on
the basis of a 360-day year consisting of twelve 30-day months on the Stated
Principal Balance of the related Loan.
"UCC": The Uniform Commercial Code, as enacted in each
applicable state.
"UCC Financing Statement": A financing statement executed
and filed pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1, Class
LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH,
Class LJ, Class LK, Class LL, Class LM, Class LN and Class LO Uncertificated
Interests.
"Uncovered Prepayment Interest Shortfall": As to any Distribution
Date and any Loan as to which a Principal Prepayment is made, the amount, if
any, by which the Prepayment Interest Shortfall, if any, for such Loan as of
such Distribution Date exceeds the sum of (i) the Servicing Fee attributable to
such Loan (other than a Specially Serviced Loan and other than any Loans
described in the proviso in the last paragraph of Section 3.11(a) in connection
with a Principal Prepayment described therein) and (ii) the investment income
accruing on the related Principal Prepayment (other than any Principal
Prepayment described in the proviso in the last paragraph of Section 3.11(a))
and due to the Servicer for the period from the date of such prepayment to the
end of the related Due Period (or, in the case of a Specially Serviced Loan, for
the period from the date of such prepayment to the Due Date immediately
preceding such Distribution Date).
"Uncovered Prepayment Interest Shortfall Amount": As to any
Distribution Date, the amount, if any, by which (i) the sum of the Uncovered
Prepayment Interest Shortfalls, if any, for such Distribution Date exceeds (ii)
the aggregate amount of Prepayment Interest Excesses, if any, on all Loans for
such Distribution Date.
"Underwriters": Collectively, Credit Suisse First Boston
Corporation and Morgan Stanley & Co. Incorporated.
"Underwritten Debt Service Coverage Ratio": As listed on
Exhibit J hereto.
"Underwritten Net Cash Flow": With respect to any Loan or Mortgaged
Property (other than Loans relating to properties on which a cooperative
apartment building is located or Mortgaged Properties relating to Credit Lease
Loans), cash flow available for debt service, as determined by the applicable
Mortgage Loan Seller based on borrower-supplied information or appraisal for a
recent period that is generally calendar year 1998 or the most recent
twelve-month period preceding the origination date.
"Unpaid Interest Shortfall Amount": As to the first Distribution
Date and any Class of Regular Certificates, zero. As to any Distribution Date
after the first Distribution Date and any Class of Regular Certificates, the
amount, if any, by which the sum of the Interest Shortfall Amounts for such
Class for prior Distribution Dates exceeds the sum of the amounts distributed on
such Class on prior Distribution Dates in respect of such Interest Shortfall
Amounts.
"Unrestricted Servicer Reports": Collectively, the
Delinquent Loan Status Report, Historical Loan Modification Report,
Historical Loss Estimate Report and REO Status Report.
"Upper-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Certificate Administrator,
pursuant to Section 3.04(b) in trust for the Certificateholders, which shall be
entitled "Norwest Bank Minnesota, National Association, as Certificate
Administrator, in trust for The Chase Manhattan Bank, as Trustee, for the
Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, Upper-Tier Distribution
Account." Any such account or accounts shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any State thereof or the District of Columbia
(other than a partnership that is not treated as a United States person under
any applicable Treasury regulations), or an estate whose income is subject to
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have
authority to control all substantial decisions of the trust. Notwithstanding the
preceding sentence, to the extent provided in regulations, certain trusts in
existence on August 20, 1996 and treated as United States persons prior to such
date that elect to continue to be so treated also shall be considered U.S.
Persons.
"Voting Rights": The portion of the voting rights of all of the
Certificates, which is allocated to any Certificate. At all times during the
term of this Agreement and for any date of determination, the Voting Rights
shall be allocated among the various Classes of Certificateholders as follows:
(i) 2% in the case of the Class A-X Certificates, and (ii) in the case of any
other Class of Regular Certificates a percentage equal to the product of 98% and
a fraction, the numerator of which is equal to the aggregate Certificate Balance
of such Class, in each case, determined as of the Distribution Date immediately
preceding such date of determination, and the denominator of which is equal to
the aggregate Certificate Balance of the Regular Certificates, each determined
as of the Distribution Date immediately preceding such date of determination.
None of the Class V-1, Class V-2, Class R or Class LR Certificates will be
entitled to any Voting Rights. For purposes of determining Voting Rights, the
Certificate Balance of any Class shall be deemed to be reduced by allocation of
the Collateral Support Deficit to such Class. Voting Rights allocated to a Class
of Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates.
"Website": The internet website maintained by the
Certificate Administrator initially located at "www.ctslink.com/cmbs."
"Weighted Average Net Mortgage Rate": As to any Distribution Date,
the average, as of such Distribution Date, of the Net Mortgage Pass-Through
Rates of the Loans, weighted by the Stated Principal Balances thereof.
"Whole Loan": With respect to the Exchange Apartments Loan and the
L'Enfant Participation, the entire indebtedness secured by the related Mortgaged
Property.
"Withheld Amounts": As defined in Section 3.29(a).
"Workout Fee": The fee paid to the Special Servicer with
respect to each Corrected Loan.
"Workout Fee Rate": As defined in Section 3.11(b).
"Yield Maintenance Charge": With respect to any Loan, the yield
maintenance charge set forth in the related Loan, including but not limited to a
yield maintenance charge which is based on the amount of Defeasance Collateral.
If a Yield Maintenance Charge becomes due for any particular Loan, the Servicer
shall be required to follow the terms and provisions contained in the applicable
Loan Documents; provided, however, that if the related Loan Documents do not
specify which U.S. Treasury obligations are to be used in determining the
discount rate or the reinvestment yield to be applied in such calculation, or if
the related Loan Documents are ambiguous, the Servicer shall be required to use
those U.S. Treasury obligations that will generate the lowest discount rate or
reinvestment yield for the purposes thereof. Accordingly, if either no U.S.
Treasury obligation, or more than one U.S. Treasury obligation, coincides with
the term over which the Yield Maintenance Charge is to be calculated (which,
depending on the applicable Loan Documents, is based on the remaining average
life of the Loan or the actual term remaining through the Maturity Date), the
Servicer shall use the U.S. Treasury obligations whose reinvestment yield is the
lowest, with such yield being based on the bid price for such issue as published
in The Wall Street Journal on the date that is fourteen (14) days prior to the
date that the Yield Maintenance Charge becomes due and payable (or, if such bid
price is not published on that date, the next preceding date on which such bid
price is so published) and converted to a monthly compounded nominal yield. The
monthly compounded nominal yield ("MEY") is derived from the reinvestment yield
or discount rate and shall be defined as MEY = (12 x [{(1+BEY/2)1/6}-1]) x 100
where BEY is defined as the U.S. Treasury Reinvestment Yield in decimal, not
percentage, form, and 1/6 is the exponential power to which a portion of the
equation is raised. For example, using a BEY of 5.50%, the MEY = (12 x [{(1 +
0.055/2) 0.16667}-1]) x 100, where 0.055 is the decimal version of the
percentage 5.50%, and 0.16667 is the decimal version of the exponential power.
(The MEY calculated in the above example is 5.438%.)
"Yield Protection Payment": As to any Distribution Date and any
Additional Collateral Prepayment Amount in respect of the Additional Collateral
Loans known as East Norriton Crossing and Kirkwood Landings Apartments that is
prepaid in the Due Period preceding such Distribution Date, the amount, if any,
by which (a) the greater of (i) one percent of the sum of such Additional
Collateral Prepayment Amount and (ii) the Yield Maintenance Charge required to
be paid by the related Borrower in connection with such prepayment exceeds (b)
that portion, if any, of the Yield Maintenance Charge required to be paid by,
and actually collected from, the related Borrower in connection with such
prepayment. The portions of any Yield Protection Payment allocable to (x) any
Class of Certificates receiving an Additional Collateral Prepayment Amount (a
"Regular Yield Protection Payment Amount") and (y) the Class A-X Certificates (a
"Class A-X Yield Protection Payment Amount") shall be so allocated in the same
manner as Yield Maintenance Charges are allocated. Yield Protection Payments are
assets of the Trust Fund, but shall not be assets of either REMIC formed
hereunder.
"Yield Protection Payment Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the
Certificate Administrator pursuant to Section 3.04(d), which shall be entitled
"Norwest Bank Minnesota, National Association, as Certificate Administrator, in
trust for The Chase Manhattan Bank, as Trustee, in trust for Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, Yield Protection Payment Account" and which shall
be an Eligible Account. The Yield Protection Payment Account shall not be an
asset of either REMIC formed hereunder.
"Yield Protection Payment Advance": As defined in
Section 4.03(g).
"Yield Rate": With respect to any Loan, the yield rate set
forth in the related Loan Documents.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest with respect to the Loans (other
than the Actual/360 Loans) and of Advances provided for herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months.
All calculations of interest with respect to the Actual/360 Loans and
Advances provided for herein shall be made as set forth in such Loan with
respect to the calculation of interest accruing at the related Mortgage
Rate.
(ii) Any Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, the Special Servicer or the
Trustee; provided, however, that for purposes of calculating distributions
on the Certificates, (i) any voluntary Principal Prepayment made on a date
other than the related Due Date and in connection with which the Servicer
has collected interest thereon through the end of the related Mortgage
Interest Accrual Period shall be deemed to have been made, and the
Servicer shall apply such Principal Prepayment to reduce the outstanding
principal balance of the related Loan as if such Principal Prepayment had
been received, on the following Due Date and (ii) all other Principal
Prepayments with respect to any Loan are deemed to be received on the date
they are applied to reduce the outstanding principal balance of such Loan.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class on such Distribution Date pursuant to
Section 4.04 and (c) the addition of any Certificate Deferred Interest
allocated to such Class and added to such Certificate Balance pursuant to
Section 4.06(b) (except that no such increase in Certificate Balance
pursuant to this clause (c) shall count for the purposes of determining
Voting Rights or the identity of the Controlling Class).
Section 1.03 Loan Identification Convention.
Loans shall be identified in this Agreement by reference to their
respective loan numbers, as set forth under the column heading "Loan #" in Annex
A to the Prospectus Supplement.
<PAGE>
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, without recourse, for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under (i) the Loans
identified on the Mortgage Loan Schedule, (ii) the Mortgage Loan Purchase
Agreements (including rights under the FINOVA Mortgage Loan Purchase Agreements
assigned under the MS Mortgage Loan Purchase 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
Loans (other than payments of principal and interest due and payable on the
Loans on or before the Cut-off Date and Principal Prepayments paid on or before
the Cut-off Date). The transfer of the Loans and the related rights and property
accomplished hereby is absolute and, notwithstanding Section 10.07, is intended
by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed each Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Custodian, on behalf of the Trustee (with a
copy to the Trustee, the Servicer and the Special Servicer), on or before the
Closing Date, the Mortgage File for each Loan so assigned. If a Mortgage Loan
Seller cannot deliver, or cause to be delivered as to any Loan, the original
Note, such Mortgage Loan Seller shall deliver a copy or duplicate original of
such Note, together with an affidavit substantially in the form attached as
Exhibit K hereto, certifying that the original thereof has been lost or
destroyed.
If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Loan, any of the documents and/or instruments referred
to in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation, the delivery requirements of the related Mortgage
Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied and such non-delivered document or instrument shall be deemed to have
been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by such Mortgage Loan Seller to
be a true and complete copy of the original thereof submitted for recording) is
delivered to the Custodian, on behalf of the Trustee, and the Servicer on or
before the Closing Date, and either the original of such non-delivered document
or instrument, or a photocopy thereof (certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording), with evidence of recording thereon, is delivered to
the Custodian within 120 days of the Closing Date, which period may be extended
up to two times, in each case for an additional period of 45 days provided that
such Mortgage Loan Seller, as certified in writing to the Custodian prior to
each such 45-day extension, is in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy.
If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Loan, any of the documents and/or instruments referred
to in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of recording thereon, for any other reason,
including, without limitation, that such non-delivered document or instrument
has been lost, the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(b) shall be deemed to have been satisfied and
such non-delivered document or instrument shall be deemed to have been included
in the Mortgage File if a photocopy of such non-delivered document or instrument
(with evidence of recording thereon and certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Custodian and to the Servicer on or
before the Closing Date.
Neither the Trustee nor the Custodian shall be liable for any
failure by either Mortgage Loan Seller or the Depositor to comply with the
delivery requirements of the related Mortgage Loan Purchase Agreement and this
Section 2.01(b). Notwithstanding the foregoing, if either Mortgage Loan Seller
fails to deliver a UCC-2 or UCC-3 on or before the Closing Date as required
above solely because the related UCC-1 has not been returned to such Mortgage
Loan Seller by the applicable filing office, such Mortgage Loan Seller shall not
be in breach of its obligations with respect to such delivery, provided that the
Mortgage Loan Seller promptly forwards such UCC-1 to the Servicer (with a copy
to the Custodian) upon its return, together with the related original UCC-2 or
UCC-3 in a form appropriate for filing.
(c) At the expense of the related Mortgage Loan Seller, the
Custodian shall, as to each Loan, use its best efforts to promptly (and in any
event no later than the later of (i) 90 days after the Closing Date and (ii) 60
days from receipt of documents in recordable form, including, without
limitation, all necessary recording and filing information) cause to be
submitted for recording or filing, as the case may be, each assignment referred
to in clauses (ii), (iii), (iv), (v) and (vii) of the definition of "Mortgage
File" and each UCC-2 or UCC-3 referred to in clause (xi) of the definition of
"Mortgage File." Each such assignment shall reflect that it should be returned
by the public recording office to the Custodian following recording, and each
such UCC-2 or UCC-3 shall reflect that the file copy thereof should be returned
to the Custodian following filing. If any such document or instrument is lost or
returned unrecorded or unfiled because of a defect therein, the Custodian shall
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Custodian shall upon receipt thereof cause
the same to be duly recorded or filed, as appropriate. Within 30 days following
request therefor, the Depositor shall reimburse the Custodian for all of its
costs and expenses incurred in performing its obligation under this Section
2.01(c).
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Loans (including reserve and
escrow agreements, cash management agreements, lockbox agreements, financial
statements, operating statements and any other information provided by the
respective Mortgagor from time to time) that are not required to be a part of a
Mortgage File in accordance with the definition thereof shall be delivered to
the Servicer within 30 days of the Closing Date and shall be held by the
Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Custodian and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Loans in the name
of such Mortgage Loan Seller or any other name to be transferred to the Servicer
(or a Sub-Servicer at the direction of the Servicer) for deposit into Servicing
Accounts.
(g) Each of the Exchange Apartments Loan and the L'Enfant
Participation is secured by a Mortgaged Property which serves as security for
the Trust Fund Note and the related Other Note. With respect to the L'Enfant
Participation, the related Other Note is included in a trust fund (the "Other
Trust Fund") created in connection with issuance of the Depositor's Commercial
Mortgage Pass-Through Certificates, Series 1998-C2.
Section 2.02 Acceptance by Custodian.
(a) The Custodian, on behalf of the Trustee, by the execution and
delivery of this Agreement, acknowledges receipt by it, subject to the
provisions of Sections 2.01 and 2.02(d), to any exceptions noted on the
Custodian Exception Report, and to the further review provided for in Section
2.02(b), of the Notes, fully executed original counterparts of the Mortgage Loan
Purchase Agreements and of all other assets included in the Trust Fund, in good
faith and without notice of any adverse claim, and declares that it holds and
will hold such documents and any other documents delivered or caused to be
delivered by the Mortgage Loan Sellers constituting the Mortgage Files, and that
it holds and will hold such other assets included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
(b) Within 90 days of the Closing Date, the Custodian shall review
and, subject to Sections 2.01 and 2.02(d), certify in writing to each of the
Depositor, the Servicer, the Special Servicer, the Trustee and the applicable
Mortgage Loan Seller that, as to each Loan listed in the Mortgage Loan Schedule
(other than any Loan paid in full or any Loan specifically identified in any
exception report annexed thereto as not being covered by such certification),
(i) all documents specified in clauses (i) through (v), (ix), (xi) and (xii) of
the definition of "Mortgage File" are in its possession, and (ii) all documents
delivered or caused to be delivered by such Mortgage Loan Seller constituting
the Mortgage Files have been received, have been executed, appear to be what
they purport to be, purport to be recorded or filed (if recordation or filing is
specified for such document in the definition of "Mortgage File") and have not
been torn, mutilated or otherwise defaced, and that such documents relate to the
Loans identified on the Mortgage Loan Schedule.
(c) The Custodian shall review each of the Loan Documents received
after the Closing Date; and, on or about 90 days following the Closing Date, 180
days following the Closing Date, the first anniversary of the Closing Date, 180
days following the first anniversary of the Closing Date, 270 days following the
first anniversary of the Closing Date and on the second anniversary of the
Closing Date, the Custodian shall, subject to Sections 2.01 and 2.02(d), certify
in writing to each of the Depositor, the Servicer, the Special Servicer, the
Trustee and the Mortgage Loan Seller that, as to each Loan listed on the
Mortgage Loan Schedule (other than any Loan as to which a Liquidation Event has
occurred or any Loan specifically identified in any exception report annexed
thereto as not being covered by such certification), (i) all documents specified
in clauses (i) through (v), (ix), (xi) and (xii) of the definition of "Mortgage
File" are in its possession, (ii) it has received either a recorded original of
each of the assignments specified in clause (iii) and clause (v) of the
definition of "Mortgage File," insofar as an unrecorded original thereof had
been delivered or caused to be delivered by the applicable Mortgage Loan Seller
or a copy of such recorded original certified by the applicable public recording
office to be true and complete, and (iii) all such Loan Documents have been
received, have been executed, appear to be what they purport to be, purport to
be recorded or filed (if recordation or filing is specified for such document in
the definition of "Mortgage File") and have not been torn, mutilated or
otherwise defaced, and that such documents relate to the Loans identified on the
Mortgage Loan Schedule. The Custodian shall provide the Servicer with recording
and filing information as to recorded Mortgages, Assignment of Lease and UCC
financing statements promptly after the Custodian receives them from the related
recording offices.
(d) It is herein acknowledged that the Custodian is not under any
duty or obligation (i) to determine whether any of the documents specified in
clauses (vi), (vii), (viii), (x), (xiii) through (xxiii) of the definition of
"Mortgage File" exist or are required to be delivered by the Depositor, a
Mortgage Loan Seller or any other Person other than to the extent identified on
the related Mortgage Loan Schedule, (ii) to inspect, review or examine any of
the documents, instruments, certificates or other papers relating to the Loans
delivered to it to determine that the same are valid, legal, effective, in
recordable form, genuine, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face or (iii) to determine whether any omnibus assignment specified in clause
(vii) of the definition of "Mortgage File" is effective under applicable law.
(e) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Custodian finds that (a) any document required to be
included in the Mortgage File is not in its possession or (b) such document has
not been properly executed or is otherwise defective on its face (each, a
"Defect" in the related Mortgage File), the Custodian shall promptly so notify
the Depositor, the Servicer, the Special Servicer, the Trustee and the Mortgage
Loan Sellers, by providing a written report (the "Custodian Exception Report")
setting forth for each affected Loan, with particularity, the nature of such
Defect. The Custodian shall not be required to verify the conformity of any
document with the Mortgage Loan Schedule, except that such documents have been
properly executed or received, have been recorded or filed (if recordation is
specified for such document in the definition of "Mortgage File"), appear to be
related to the Loans identified on the Mortgage Loan Schedule, appear to be what
they purport to be, or have been torn, mutilated or otherwise defaced.
(f) Upon the second anniversary of the Closing Date, the Custodian
shall deliver a final exception report as to any remaining Defects or required
Loan Documents that are not in its possession.
(g) Upon becoming aware of a Defect (including through notice from
the Custodian or any other party hereto), the Servicer shall cause the
applicable Mortgage Loan Seller to either: (i) cause such Defect or Loan
Document deficiency to be cured in accordance with the applicable Mortgage Loan
Purchase Agreement; (ii) cause to be delivered to the Custodian an Opinion of
Counsel to the effect that such Defect or Loan Document deficiency will not have
a material adverse effect upon the value of the related Loan or the
Certificateholders' interest therein; or (iii) repurchase the related Loan
pursuant to Section 2.03 and the applicable Mortgage Loan Purchase Agreement.
Section 2.03 Representations, Warranties and Covenants
of the Depositor; Repurchase of Loans by the Mortgage Loan Sellers,
FINOVA and FINOVA Capital for Defects in Mortgage Files and Breaches of
Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Loans in accordance
with this Agreement;
(ii) Assuming the due authorization, execution and delivery of
this Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Loans or the ability
of the Depositor to carry out the transactions contemplated by this
Agreement;
(v) The Depositor is the lawful owner of the Loans with the full
right to transfer the Loans to the Trust Fund and upon the assignment of
the Loans to the Trust, the Loans will be validly transferred to the
Trust;
(vi) Following consummation of the conveyance of the Loans by the
Depositor to the Trustee, the Depositor shall take no action inconsistent
with the Trust Fund's ownership of the Loans, and if a third party,
including a potential purchaser of the Loans, should inquire, the
Depositor shall promptly indicate that the Loans have been sold and shall
claim no ownership interest therein; and
(vii) Each Loan is a "qualified mortgage" within the meaning of
Code Section 860G(a)(3) (but without regard to the rule in Treasury
Section 1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage).
(b) If any Certificateholder, the Servicer, the Special Servicer,
the Certificate Administrator, the Custodian or the Trustee discovers or
receives notice of a breach of any representation or warranty set forth in, or
required to be made with respect to a Loan by any Mortgage Loan Seller, FINOVA
or FINOVA Capital pursuant to the related Mortgage Loan Purchase Agreement or
related FINOVA Mortgage Loan Purchase Agreement, as applicable (a "Breach"),
which Breach materially and adversely affects the value of any Loan or the
interests of the Certificateholders therein, such Certificateholder, the
Servicer, the Special Servicer, the Certificate Administrator, the Custodian or
the Trustee, as applicable, shall give prompt written notice of such Breach to
the Depositor, the Certificate Administrator, the Trustee, the Servicer, the
Special Servicer, the applicable Mortgage Loan Seller and, in the event of a
Breach by FINOVA or FINOVA Capital, to FINOVA and FINOVA Capital, and shall
request that (A) such Mortgage Loan Seller, FINOVA or FINOVA Capital, as
applicable, or (B) in the event the CSFB Mortgage Loan Seller shall fail to act,
Credit Suisse First Boston, acting through the Cayman Branch, not later than (i)
the earlier of 90 days from the receipt by the applicable Mortgage Loan Seller,
FINOVA or FINOVA Capital of such notice or discovery by such Mortgage Loan
Seller, FINOVA or FINOVA Capital of such Breach and (ii) in the case of the
FINOVA Loans, the expiration of an additional 90 days, if granted by the Trustee
in accordance with the terms of the FINOVA Mortgage Loan Purchase Agreements,
cure such Breach in all material respects or repurchase the affected Loan at the
applicable Purchase Price or in conformity with the related Mortgage Loan
Purchase Agreement.
If any Certificateholder, the Servicer, the Special Servicer, the
Certificate Administrator, the Custodian or the Trustee discovers or receives
notice of a Defect in any Mortgage File, which Defect materially and adversely
affects the value of any Loan or the interests of the Certificateholders
therein, such Certificateholder, the Servicer, the Special Servicer, the
Certificate Administrator, the Custodian or the Trustee, as applicable, shall
give prompt written notice of such Defect to the Depositor, the Certificate
Administrator, the Trustee, the Servicer, the Special Servicer and the
applicable Mortgage Loan Seller and shall request that (i) such Mortgage Loan
Seller or (ii) in the event the CSFB Mortgage Loan Seller shall fail to act,
Credit Suisse First Boston, acting through the Cayman Branch, not later than the
earlier of 90 days from the receipt by such Mortgage Loan Seller of such notice
or discovery by such Mortgage Loan Seller of such Defect, cure such Defect in
all material respects or repurchase the affected Loan at the applicable Purchase
Price or in conformity with the Mortgage Loan Purchase Agreement.
Any Defect or Breach which causes any Loan not to be a "qualified
mortgage" (within the meaning of Section 860G(a)(3) of the Code) shall be deemed
to materially and adversely affect the interest of Certificateholders therein.
If the affected Loan is to be repurchased, the Trustee shall designate the
Collection Account as the account into which funds in the amount of the Purchase
Price are to be deposited by wire transfer.
In connection with any repurchase of a Loan contemplated by this
Section 2.03, the Custodian, the Servicer and the Special Servicer shall each
tender to the related Mortgage Loan Seller (in the event of a repurchase by a
Mortgage Loan Seller), FINOVA or FINOVA Capital (in the event of a repurchase by
FINOVA or FINOVA Capital), or the holder of the Exchange Apartments Other Note
(in the event of a repurchase of the Exchange Apartments Trust Fund Note
pursuant to the related Co-Lender Agreement) upon delivery to each of the
Custodian, the Servicer and the Special Servicer of a trust receipt executed by
such Mortgage Loan Seller, FINOVA or FINOVA Capital, or the holder of the
Exchange Apartments Other Note, as applicable, all portions of the Mortgage File
and other documents pertaining to such Loan possessed by it, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Trustee, shall be endorsed or assigned, as the case may be, to such Mortgage
Loan Seller, FINOVA or FINOVA Capital, or the holder of the Exchange Apartments
Other Note, as applicable, in the same manner as provided in Section 7 of the
related Mortgage Loan Purchase Agreement or Section 9.3 of the related FINOVA
Mortgage Loan Purchase Agreement, respectively.
Section 7 of the Mortgage Loan Purchase Agreements and Section 9.3
of the FINOVA Mortgage Loan Purchase Agreements provides the sole remedy
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Breach. Section 7 of the Mortgage Loan
Purchase Agreements provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Defect.
If a Mortgage Loan Seller, FINOVA or FINOVA Capital defaults on its
obligations to repurchase any Loan as contemplated by Section 2.03(b), the
Trustee shall promptly notify the Certificateholders, the Certificate
Administrator, the Rating Agencies, the Servicer and the Special Servicer of
such default. The Trustee shall enforce the obligations of the Mortgage Loan
Sellers under Section 7 of the related Mortgage Loan Purchase Agreement, and of
FINOVA and FINOVA Capital under Section 9.3 of the related FINOVA Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, shall be carried out in such form, to such extent and at
such time as if it were, in its individual capacity, the owner of the affected
Loan(s). The Trustee shall be reimbursed for the reasonable costs of such
enforcement: first, from a specific recovery of costs, expenses or attorneys'
fees against the defaulting Mortgage Loan Seller, FINOVA or FINOVA Capital;
second, pursuant to Section 3.05(a)(vii) out of the related Purchase Price, to
the extent that such expenses are a specific component thereof; and third, if at
the conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) out of general collections on the Loans on deposit in the
Collection Account.
Section 2.04 Execution of Certificates.
Subject to Sections 2.01 and 2.02, the Trustee hereby acknowledges
the assignment to it of the Loans and the delivery to the Custodian on its
behalf of the Mortgage Files and fully executed original counterparts of the
Mortgage Loan Purchase Agreements, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment and
delivery and in exchange therefor, the Trustee acknowledges the issuance of the
Uncertificated Lower-Tier Interests to the Depositor and the Class LR, Class V-1
and Class V-2 Certificates to or upon the order of the Depositor, in exchange
for the Loans, receipt of which is hereby acknowledged, and immediately
thereafter, the Trustee acknowledges that, pursuant to the written request of
the Depositor executed by an officer of the Depositor, it has caused the
Certificate Administrator to execute and caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor, in exchange
for the Uncertificated Lower-Tier Interests, the Regular Certificates and the
Class R Certificates, and the Depositor hereby acknowledges the receipt by it or
its designees, of all such Certificates.
<PAGE>
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special
Servicer to Act as Special Servicer; Administration of the Loans.
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Loans (and, with respect to the Special Servicer, any
REO Properties) it is obligated to service pursuant to this Agreement, subject
to the servicing of the L'Enfant Participation by the L'Enfant Servicer and
L'Enfant Special Servicer, on behalf of the Trust Fund and in the best interests
of and for the benefit of the Certificateholders as well (as determined by the
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment) in accordance with applicable law, the terms of the
respective Loans or Specially Serviced Loans, and, to the extent consistent with
the foregoing, the terms of this Agreement, in the case of the L'Enfant
Participation and the Exchange Apartments Loan, the related Co-Lender Agreement,
in the case of the L'Enfant Participation, the L'Enfant Participation Agreement,
and, to the extent consistent with the foregoing, in accordance with the higher
of the following standards of care: (1) the same manner in which, and with the
same care, skill, prudence and diligence with which, the Servicer or Special
Servicer, as the case may be, services and administers similar commercial or
multifamily mortgage loans for other third-party portfolios, giving due
consideration to the customary and usual standards of practice of prudent
institutional multifamily or commercial mortgage lenders servicing their own
mortgage loans and (2) the same care, skill, prudence and diligence with which
the Servicer or Special Servicer, as the case may be, services and administers
similar commercial or multifamily mortgage loans owned by the Servicer or
Special Servicer, in either case exercising reasonable business judgment and
with a view to the maximization, on a present value basis (discounting at the
related Mortgage Rate), of timely recovery of principal and interest on the
Loans or Specially Serviced Loans, as applicable, but without regard to: (i) any
relationship that the Servicer or the Special Servicer, as the case may be, or
any Affiliate thereof may have with the related Mortgagor or any other party to
this Agreement; (ii) the ownership of any Certificate by the Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (iii) the
Servicer's obligation to make Advances; (iv) the Servicer's or Special
Servicer's, as the case may be, right to receive compensation for its services
hereunder or with respect to any particular transaction; and (v) the Servicer's
or Special Servicer's ownership, servicing or management of any other mortgage
loans or mortgaged properties (the foregoing, collectively referred to as the
"Servicing Standard"). Nothing herein contained shall be construed as an express
or implied guarantee by the Servicer or the Special Servicer of the
collectibility of payments on the Loans or shall be construed as impairing or
adversely affecting any rights or benefits specifically provided by this
Agreement to the Servicer or the Special Servicer, including with respect to
Servicing Fees or Special Servicing Fees or, with respect to the Servicer, the
right to be reimbursed for Advances.
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Loans as to which
a Servicing Transfer Event has occurred and is continuing (each such Loan, a
"Specially Serviced Loan"), and (ii) any REO Properties. Notwithstanding the
foregoing, the Servicer shall continue to make all calculations, and prepare, or
cause to be prepared by the Special Servicer and delivered to the Trustee and
the Certificate Administrator, all reports to the Trustee and the Certificate
Administrator required hereunder with respect to the Specially Serviced Loans as
if no Servicing Transfer Event had occurred and with respect to the REO
Properties (and the related REO Loans) as if no REO Acquisition had occurred,
and to render such incidental services with respect to such Specially Serviced
Loan and REO Properties as are specifically provided for herein; provided,
however, that the Servicer shall not be liable for failure to comply with such
duties insofar as such failure results from a failure of the Special Servicer to
provide sufficient information to the Servicer to comply with such duties or a
failure of the Special Servicer to prepare and deliver to the Servicer reports
required hereunder to be delivered by the Special Servicer to the Servicer. Each
Loan that becomes a Specially Serviced Loan shall continue as such until
satisfaction of the conditions specified in Section 3.21(a). Without limiting
the foregoing, subject to Section 3.21, the Servicer shall be obligated to
service and administer all Loans which are not Specially Serviced Loans;
provided, however, that the Special Servicer shall make the inspections, use its
reasonable best efforts to collect the statements and shall prepare the reports
in respect of the related Mortgaged Properties with respect to Specially
Serviced Loans in accordance with Section 3.12.
(b) Subject only to the Servicing Standard and the terms of this
Agreement and of the respective Loans, the Servicer and the Special Servicer
each shall have full power and authority, acting alone, to do or cause to be
done any and all things in connection with such servicing and administration
which it may deem necessary or desirable. Without limiting the generality of the
foregoing, each of the Servicer and the Special Servicer, in its own name, is
hereby authorized and empowered by the Trustee and obligated to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them,
with respect to each Loan it is obligated to service under this Agreement, any
and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the related Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; subject to Section 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments. Subject to Section 3.10, the Trustee shall
furnish, or cause to be furnished, to the Servicer or the Special Servicer any
limited powers of attorney and other documents necessary or appropriate to
enable the Servicer or the Special Servicer, as the case may be, to carry out
its servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Servicer or the Special Servicer.
(c) The relationship of each of the Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
Section 3.02 Collection of Loan Payments.
(a) Each of the Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Loans it is obligated to service hereunder, and shall follow
such collection procedures as are consistent with this Agreement (including,
without limitation, the Servicing Standard). Consistent with the foregoing, the
Servicer or the Special Servicer each may in its discretion waive any Penalty
Charge in connection with any delinquent payment on a Loan it is obligated to
service hereunder.
(b) All amounts collected on any Loan in the form of payments from
Mortgagors, Insurance and Condemnation Proceeds or Liquidation Proceeds shall be
applied to amounts due and owing under the related Note and Mortgage (including
any modifications to either of them) in accordance with the express provisions
of such Note and Mortgage (unless a payment default exists under such Loan and
the related Note and Mortgage permit application in the order and priority
determined by the lender) and, in the absence of such express provisions, shall
be applied (after payment to the Servicer, any Primary Servicer, the Special
Servicer, the Certificate Administrator and/or the Trustee for any related
Servicing Fees, Primary Servicing Fees, Special Servicing Fees, the Certificate
Administrator Fees and Trustee Fees and the application to any P&I Advances,
Servicing Advances and interest on Advances from such Loan): first, as a
recovery of accrued and unpaid interest on such Loan at the related Mortgage
Rate (less portions thereof payable to the Servicer, Special Servicer, the
Certificate Administrator, Trustee or, if applicable, the related Primary
Servicer) in effect from time to time to but not including the Due Date in the
Due Period of receipt; second, as a recovery of principal of such Loan; and
third, to the payment of Prepayment Premiums and Yield Maintenance Charges.
Notwithstanding the terms of any Loan, the Servicer shall not be entitled to the
payment of any Penalty Charge in excess of outstanding interest on Advances made
with respect to such Loan, except to the extent that (i) all reserves then
required to be funded pursuant to the terms of such Loan have been so funded,
(ii) all payments of principal and interest then due on such Loan have been paid
and (iii) all related operating expenses, if applicable, have been paid to the
related Lock-Box or reserved for pursuant to the related Lock-Box Agreement. In
no event shall any collections on any ARD Loan be allocated to the payment of
Excess Interest until all principal and interest (other than Excess Interest)
due, or to become due, under such ARD Loan have been paid in full. Amounts
collected on any REO Loan shall be deemed to be applied in accordance with the
definition thereof.
(c) If the Servicer or Special Servicer receives, or receives notice
from the related Borrower that it will be receiving, Excess Interest in any Due
Period, the Servicer or Special Servicer, as applicable, shall promptly notify
the Certificate Administrator in writing.
Section 3.03 Collection of Taxes, Assessments and
Similar Items; Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained, and shall administer such Servicing Accounts in accordance with
the related Loan Documents. Each Servicing Account shall be maintained in
accordance with the requirements of the related Loan and in accordance with the
Servicing Standard and to the extent not inconsistent with the terms of the
Loans, in an Eligible Account. Funds on deposit in the Servicing Accounts may be
invested in Permitted Investments in accordance with the provisions of Section
3.06. Withdrawals of amounts so deposited from a Servicing Account may be made
only to: (i) effect payment of real estate taxes, assessments, Insurance Policy
premiums, ground rents (if applicable) and other items for which funds have been
escrowed in the Servicing Accounts; (ii) reimburse the Servicer or the Trustee
for any Servicing Advances; (iii) refund to Mortgagors any sums as may be
determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Loan and as described below or, if not so required, to the Servicer; (v)
withdraw amounts deposited in error; (vi) clear and terminate the Servicing
Accounts at the termination of this Agreement in accordance with Section 9.01;
and (vii) pay the Servicer, as additional servicing compensation in accordance
with Section 3.11(a), interest and investment income earned in respect of
amounts relating to the Trust Fund held in the Servicing Accounts as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings with
respect to the Servicing Accounts for any period from any Distribution Date to
the immediately succeeding P&I Advance Date) to the extent not required by law
or the terms of the related Loan to be paid to the Mortgagors.
(b) The Special Servicer, in the case of REO Loans and Specially
Serviced Loans, and the Servicer, in the case of all other Loans, shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon (including related penalty or interest charges) and the
status of Insurance Policy premiums and any ground rents payable in respect
thereof. The Special Servicer, in the case of REO Loans and Specially Serviced
Loans, and the Servicer, in the case of all other Loans, shall obtain all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof from the REO Account or the Servicing Accounts, and, if such
amounts are insufficient to pay such items in full, the Servicer shall make a
Servicing Advance prior to the applicable penalty or termination date, as
allowed under the terms of the related Loan and, in any event, consistent with
the Servicing Standard. Notwithstanding anything to the contrary in the
preceding sentence, with respect to Loans that do not provide for escrows for
the payment of taxes and assessments, the Servicer shall make a Servicing
Advance for the payment of such items upon the earlier of (x) 30 days after the
date such payments first become delinquent and (y) five Business Days before the
scheduled date of foreclosure of any lien arising from nonpayment of such items
(which Servicing Advance shall in each case be so applied by the Servicer at the
written direction of the Special Servicer in the case of Specially Serviced
Loans and REO Loans). In no event shall the Servicer or the Special Servicer be
required to make any such Servicing Advance that would, if made, be a
Nonrecoverable Servicing Advance. To the extent that a Loan does not require a
Mortgagor to escrow for the payment of real estate taxes, assessments, Insurance
Policy premiums, ground rents (if applicable) and similar items, the Special
Servicer, in the case of Specially Serviced Loans and REO Loans, and the
Servicer, in the case of all other Loans, shall use reasonable efforts
consistent with the Servicing Standard to require that payments in respect of
such items be made by the Mortgagor at the time they first become due.
(c) In accordance with the Servicing Standard and for all Loans, the
Servicer shall make a Servicing Advance with respect to each related Mortgaged
Property (including any REO Property) of all such funds as are necessary for the
purpose of effecting the payment of (i) ground rents (if applicable), (ii)
premiums on Insurance Policies, (iii) operating, leasing, managing and
liquidation expenses for REO Properties and (iv) environmental inspections and
remediations, if any, in each instance if and to the extent monies in the
Servicing Accounts are insufficient to pay such item when due and the related
Mortgagor has failed to pay such item on a timely basis, provided that the
Servicer shall not be required to make any such advance that would, if made,
constitute a Nonrecoverable Servicing Advance; and provided further that with
respect to the payment of taxes and assessments, the Servicer shall not be
required to make any such advance until the earlier of (i) five Business Days
after the Servicer has received confirmation that such item has not been paid
and (ii) with respect to Loans that provide for escrows for the payment of taxes
and assessments, the earlier of (A) 30 days after the date such payments first
become due and (B) five Business Days before the scheduled date of foreclosure
of any lien arising from nonpayment of such items.
The Special Servicer shall give the Servicer, the Certificate
Administrator and the Trustee not less than five Business Days' notice before
the date on which the Servicer is required to make any Servicing Advance with
respect to a given Loan or REO Property; provided, however, that only two
Business Days' notice shall be required in respect of Servicing Advances
required to be made on an urgent or emergency basis (which may include, without
limitation, Servicing Advances required to make tax or insurance payments). In
addition, the Special Servicer shall provide the Servicer and the Trustee with
such information in its possession as the Servicer or the Trustee, as
applicable, may reasonably request to enable the Servicer or the Trustee, as
applicable, to determine whether a requested Servicing Advance would constitute
a Nonrecoverable Servicing Advance. Any request by the Special Servicer that the
Servicer make a Servicing Advance shall be deemed to be a determination by the
Special Servicer that such requested Servicing Advance is not a Nonrecoverable
Servicing Advance, and the Servicer shall be entitled to conclusively rely on
such determination, provided that such determination shall not be binding upon
the Servicer. On the fourth Business Day before each Distribution Date, the
Special Servicer shall report to the Servicer the Special Servicer's
determination as to whether any Servicing Advance previously made with respect
to a Specially Serviced Loan or REO Loan is a Nonrecoverable Servicing Advance.
The Servicer shall be entitled to conclusively rely on such a determination,
provided that such determination shall not be binding upon the Servicer.
All such Servicing Advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Loans, notwithstanding that the terms of such Loans so permit. If the Servicer
fails to make any required Servicing Advance as and when due to the extent a
Responsible Officer of the Trustee has been notified of such failure in writing
by the Servicer, Special Servicer or Depositor, the Trustee shall make such
Servicing Advance pursuant to Section 7.05.
(d) In connection with its recovery of any Servicing Advance out of
the Collection Account pursuant to clauses (iv) or (v) of Section 3.05(a) or
from a Servicing Account pursuant to Section 3.03(a)(ii), each of the Servicer
and the Trustee, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in the Collection Account, interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of such Servicing
Advance from and including the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself or the Trustee, as the case
may be, for any outstanding Servicing Advance as soon as practically possible
after funds available for such purpose are deposited in the Collection Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Loan, the Servicer or,
with respect to Specially Serviced Loans, the Special Servicer shall request
from the Mortgagor written confirmation thereof within a reasonable time after
the later of the Closing Date and the date as of which such plan is required to
be established or completed. To the extent any repairs, capital improvements,
actions or remediations are required to have been taken or completed pursuant to
the terms of the Loan, the Servicer or, with respect to Specially Serviced
Loans, the Special Servicer shall request from the Mortgagor written
confirmation of such actions and remediations within a reasonable time after the
later of the Closing Date and the date as of which such action or remediations
are required to be or to have been taken or completed. To the extent a Mortgagor
fails to promptly respond to any inquiry described in this Section 3.03(e), the
Servicer (with respect to Loans that are not Specially Serviced Loans) shall
determine whether the related Mortgagor has failed to perform its obligations
under the related Loan and report any such failure to the Special Servicer
within a reasonable time after the date as of which such operations and
maintenance plan is required to be established or executed or the date as of
which such actions or remediations are required to be or to have been taken or
completed.
Section 3.04 The Collection Account, Distribution
Accounts, Excess Interest Distribution Account and Yield Protection
Payment Account.
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, the Collection Account, into which the Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than the Business Day following receipt of available funds), except as otherwise
specifically provided herein, the following payments and collections received
after the Cut-off Date (other than payments of principal and interest on the
Loans due and payable on or before the Cut-off Date) and payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto;
(i) all payments on account of principal, including
Principal Prepayments, on the Loans; and
(ii) all payments on account of interest on the Loans, net of (A)
the Servicing Fees and Primary Servicing Fees (in each case net of any
amount utilized to offset Prepayment Interest Shortfalls), (B) Penalty
Charges (net of any amount thereof utilized to offset interest on
Advances), (C) Prepayment Premiums, (D) Excess Interest and (E) Yield
Maintenance Charges; and
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Loan or REO Property (other than
Liquidation Proceeds that are to be deposited in the Lower-Tier
Distribution Account pursuant to Section 9.01); and
(iv) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(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 Collection 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 policy; and
(vii) any amounts required to be deposited by the Servicer
pursuant to the last paragraph of Section 3.11(a) as a reduction in the
compensation to the Servicer to cover Prepayment Interest Shortfalls; and
(viii) any Prepayment Interest Excess to which the Servicer is
not entitled as provided in Section 3.11(a).
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that actual payments from
Mortgagors in the nature of Escrow Payments, charges for beneficiary statements
or demands, assumption fees, modification fees, extension fees, amounts
collected for mortgagor checks returned for insufficient funds or other amounts
that the Servicer or Special Servicer is entitled to retain as additional
servicing compensation pursuant to Section 3.11 need not be deposited by the
Servicer in the Collection Account. If the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account.
Within one Business Day of receipt of any of the foregoing amounts
with respect to any Specially Serviced Loan, the Special Servicer shall remit
such amounts to the Servicer for deposit into the Collection Account in
accordance with the second preceding paragraph. Any amounts received by the
Special Servicer with respect to an REO Property shall be deposited into the REO
Account and remitted to the Servicer for deposit into the Collection Account
pursuant to Section 3.16(c).
(b) The Certificate Administrator shall establish and maintain the
Distribution Accounts in trust for the benefit of the Certificateholders. The
Certificate Administrator shall make or be deemed to have made deposits in and
withdrawals from the Distribution Accounts in accordance with the terms of this
Agreement. The Servicer shall deliver to the Certificate Administrator each
month on or before 3:00 p.m., New York City time, on the Servicer Remittance
Date, for deposit in the Lower-Tier Distribution Account, that portion of the
Available Distribution Amount (calculated without regard to clauses (a)(v) and
(c) of the definition thereof) for the related Distribution Date then on deposit
in the Collection Account.
The Servicer shall, as and when required hereunder, deliver to the
Certificate Administrator for deposit in the Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03 (or, if the Trustee succeeds to the
Servicer's obligations hereunder, Section 7.05);
(ii) any Liquidation Proceeds paid by the Servicer in connection
with the purchase of all of the Loans and any REO Properties in the Trust
Fund pursuant to Section 9.01 (exclusive of that portion thereof required
to be deposited in the Collection Account pursuant to Section 9.01);
(iii) any Yield Maintenance Charges or Prepayment Premiums; and
(iv) any other amounts required to be so delivered for deposit in
the Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
The Certificate Administrator shall, upon receipt, deposit in the
Lower-Tier Distribution Account any and all amounts received by the Certificate
Administrator that are required by the terms of this Agreement to be deposited
therein.
On each Distribution Date, the Certificate Administrator shall
deposit or be deemed to have deposited in the Upper-Tier Distribution Account an
aggregate amount of immediately available funds equal to the Lower-Tier
Distribution Amount and the amount of any Prepayment Premiums and Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(e), respectively.
(c) Prior to the Servicer Remittance Date relating to any Due Period
in which Excess Interest is received, the Certificate Administrator shall
establish and maintain the Excess Interest Distribution Account in the name of
the Certificate Administrator for the benefit of the Trustee, for the benefit of
the Holders of the Class V-1 and Class V-2 Certificates. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account.
On or before each Servicer Remittance Date, the Servicer shall remit to the
Certificate Administrator for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period. On each Distribution Date, the Certificate Administrator shall withdraw
the Excess Interest from the Excess Interest Distribution Account for
distribution pursuant to Section 4.01(f). Following the distribution of Excess
Interest to Holders of the Class V-1 and Class V-2 Certificates on the first
Distribution Date after which no Loans remain outstanding that pursuant to their
terms could pay Excess Interest, the Certificate Administrator shall terminate
the Excess Interest Distribution Account.
(d) Prior to the Servicer Remittance Date relating to any Due Period
in which an Additional Collateral Prepayment Amount is prepaid, the Certificate
Administrator shall establish and maintain the Yield Protection Payment Account
in the name of the Certificate Administrator for the benefit of the Trustee, for
the benefit of the Holders of the Regular Certificates. The Yield Protection
Payment Account shall be established and maintained as an Eligible Account. On
or before each Servicer Remittance Date, as required by Section 4.03(g), the
Servicer shall remit to the Certificate Administrator for deposit in the Yield
Protection Payment Account the Yield Protection Payment Advance, if any, for the
related Distribution Date. On each Distribution Date, the Certificate
Administrator shall withdraw the Yield Protection Payment from the Yield
Protection Payment Account for distribution pursuant to Section 4.01(k).
Following the distribution of the Class A-X Yield Protection Payment Amount to
Holders of the Class A-X Certificates and the distribution of the Regular Yield
Protection Payment Amount to Holders of the applicable Class of Regular
Certificates, in each case on the first Distribution Date after which all
Additional Collateral has been released to the Borrowers under the Additional
Collateral Loans or collected by the Servicer as Principal Prepayments, the
Certificate Administrator shall terminate the Yield Protection Payment Account.
(e) Funds on deposit in the Collection Account may be invested only
in Permitted Investments in accordance with the provisions of Section 3.06.
Funds on deposit in the Upper-Tier Distribution Account and the Lower-Tier
Distribution Account shall not be invested. As of the Closing Date, the
Collection Account shall be located at the offices of the Servicer and
Sub-Servicers. The Servicer shall give notice to the Trustee, the Certificate
Administrator, the Special Servicer, the Rating Agencies and the Depositor of
any new location of the Collection Account prior to any change thereof. As of
the Closing Date (or the date such account is established, if later), the
Upper-Tier Distribution Account, the Lower-Tier Distribution Account, the Excess
Interest Distribution Account and the Yield Protection Payment Account shall be
located at the offices of the Certificate Administrator. The Certificate
Administrator shall give notice to the Servicer and the Depositor of any new
location of the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account, the Excess Interest Distribution Account or the Yield Protection
Payment Account, prior to any change thereof.
Section 3.05 Permitted Withdrawals from the Collection
Account and the Distribution Accounts.
(a) The Servicer may, from time to time, make withdrawals from the
Collection Account for any of the following purposes:
(i) to remit to the Certificate Administrator for deposit in the
Lower-Tier Distribution Account the amount required to be remitted
pursuant to the first paragraph of Section 3.04(b) and the amount to be
applied to make P&I Advances pursuant to Section 4.03(a);
(ii) to pay (x) to itself, unpaid Servicing Fees (net of any such
amounts required to offset Prepayment Interest Shortfalls pursuant to
Section 3.11(a)) and any Primary Servicing Fees to which it is entitled
pursuant to Section 3.11(a), (y) to any Primary Servicer entitled thereto,
the related Primary Servicing Fee, and (z) to the Special Servicer, unpaid
Special Servicing Fees, Liquidation Fees and Workout Fees in respect of
each Loan, Specially Serviced Loan and REO Loan, as applicable, the
Servicer's rights, any Primary Servicer's rights and the Special
Servicer's rights to payment pursuant to this clause (ii) with respect to
any Loan or REO Loan, as applicable, being limited to amounts received on
or in respect of such Loan (whether in the form of payments, Liquidation
Proceeds or Insurance and Condemnation Proceeds) or such REO Loan (whether
in the form of REO Revenues, Liquidation Proceeds or Insurance and
Condemnation Proceeds) that are allocable as a recovery of interest
thereon;
(iii) to reimburse itself or the Trustee, as applicable, for
unreimbursed P&I Advances, the Servicer's or the Trustee's right to
receive payment pursuant to this clause (iii) being limited to amounts
received which represent Late Collections of interest (net of the related
Servicing Fees) on and principal of the particular Loans and REO Loans
with respect to which such P&I Advances were made;
(iv) to reimburse itself or the Trustee, as applicable, for
unreimbursed Servicing Advances, the Servicer's or the Trustee's
respective rights to receive payment pursuant to this clause (iv) with
respect to any Loan or REO Property being limited to, as applicable,
related payments, Liquidation Proceeds, Insurance and Condemnation
Proceeds and REO Revenues;
(v) to reimburse itself or the Trustee, as applicable, for
Nonrecoverable Advances out of general collections on the Loans and
REO Properties;
(vi) at such time as it reimburses itself or the Trustee, as
applicable, for (a) any unreimbursed P&I Advance pursuant to clause (iii)
above, to pay itself or the Trustee, as applicable, any interest accrued
and payable thereon in accordance with Section 4.03(d), (b) any
unreimbursed Servicing Advances pursuant to clause (iv) above or pursuant
to Section 3.03(a)(ii), to pay itself or the Trustee, as the case may be,
any interest accrued and payable thereon in accordance with Section
3.03(d) or (c) any Nonrecoverable Advances pursuant to clause (v) above,
to pay itself or the Trustee, as the case may be, any interest accrued and
payable thereon;
(vii) to reimburse itself, the Special Servicer, the Trustee, the
Depositor or the Certificate Administrator, 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 any Mortgage
Loan Seller under Section 7 of the related Mortgage Loan Purchase
Agreement of FINOVA or FINOVA Capital under Section 9.3 of the related
FINOVA Mortgage Loan Purchase Agreement, including, without limitation,
any expenses arising out of the enforcement of the repurchase obligation,
each such Person's right to reimbursement pursuant to this clause (vii)
with respect to any Loan being limited to that portion of the Purchase
Price paid for such Loan that represents such expense in accordance with
clause (iv) of the definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself,
the Trustee or the Special Servicer, as the case may be, out of general
collections on the Loans and REO Properties for any unreimbursed expense
reasonably incurred by such Person in connection with the enforcement of
any Mortgage Loan Seller's, FINOVA's or FINOVA Capital's obligations under
Section 7 of the related Mortgage Loan Purchase Agreement or Section 9.3
of the related FINOVA Mortgage Loan Purchase Agreement, as applicable, but
only to the extent that such expenses are not reimbursable pursuant to
clause (vii) above or otherwise;
(ix) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) interest and investment income earned
in respect of amounts relating to the Trust Fund held in the Collection
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the Collection Account for any period
from any Distribution Date to the immediately succeeding P&I Advance Date)
(net of any such amounts required to offset Prepayment Interest Shortfalls
pursuant to Section 3.11(a)) and any Primary Servicing Fees to which it is
entitled pursuant to Section 3.11(a), (b) Penalty Charges on any Loan
other than a Specially Serviced Loan, but only to the extent (x) collected
from the related Mortgagor and (y) in excess of outstanding interest on
Advances made with respect to such Loan, and to the extent that all
amounts then due and payable with respect to such Loan have been paid, (c)
all Prepayment Interest Excess in connection with the receipt of Principal
Prepayments (except to the extent otherwise provided in Section 3.11(a))
or Insurance and Condemnation Proceeds and (d) other fees identified in
the third paragraph of Section 3.11(a); and to pay the Special Servicer,
as additional servicing compensation in accordance with the last paragraph
of Section 3.11(b), Penalty Charges on any Specially Serviced Loan (but
only to the extent collected from the related Mortgagor and to the extent
that all amounts then due and payable with respect to such Specially
Serviced Loan have been paid);
(x) to recoup any amounts deposited in the Collection
Account in error;
(xi) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Sections
6.03(a) or 6.03(b);
(xii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Section 3.32 to the extent payable out of the Trust Fund,
(b) the cost of any Opinion of Counsel contemplated by Sections 10.01(a)
or 10.01(c) in connection with an amendment to this Agreement requested by
the Trustee or the Servicer, which amendment is in furtherance of the
rights and interests of Certificateholders and (c) the cost of obtaining
the REO Extension contemplated by Section 3.16(a);
(xiii) to pay out of general collections on the Loans and REO
Properties any and all federal, state and local taxes imposed on either
REMIC created hereunder or either of their assets or transactions,
together with all incidental costs and expenses, to the extent that none
of the Servicer, the Special Servicer, the Certificate Administrator or
the Trustee is liable therefor;
(xiv) to reimburse the Servicer and the Special Servicer out of
general collections on the Loans and REO Properties for expenses incurred
by and reimbursable to them by the Trust Fund;
(xv) to pay itself, the Special Servicer, a Mortgage Loan Seller,
FINOVA or FINOVA Capital, as the case may be, with respect to each Loan,
if any, previously purchased by such Person pursuant to this Agreement,
all amounts received thereon subsequent to the date of purchase;
(xvi) to reimburse the Special Servicer for the cost of any
environmental testing performed at the Special Servicer's direction
pursuant to the last sentence of Section 3.09(c); and
(xvii) to clear and terminate the Collection 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 Collection Account.
(b) The Certificate Administrator, may, from time to time, make
withdrawals from the Lower-Tier Distribution Account for any of the following
purposes:
(i) to make distributions of the Lower-Tier Distribution Amount
pursuant to Section 4.01(b) and the amount of any Prepayment Premium and
Yield Maintenance Charges distributable pursuant to Section 4.01(c) in the
Upper-Tier Distribution Account;
(ii) to pay the Trustee and the Certificate
Administrator accrued but unpaid Trustee Fees and Certificate
Administrator Fees, respectively;
(iii) to pay to the Trustee or the Certificate Administrator or
any of their Affiliates, directors, officers, employees and agents, as the
case may be, any amounts payable or reimbursable to any such Person
hereunder, including pursuant to Section 3.31(o), 6.03(a), 6.03(b),
8.05(c), 8.05(d) or 8.05(e);
(iv) to pay for the cost of the Opinion of Counsel contemplated
by Section 10.01(c) in connection with any amendment to this Agreement
requested by the Trustee;
(v) to clear and terminate the Lower-Tier Distribution
Account at the termination of this Agreement pursuant to
Section 9.01; and
(vi) to recoup any amounts deposited in the Lower-Tier
Distribution Account in error.
(c) The Certificate Administrator 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 clear and terminate the Upper-Tier
Distribution Account at the termination of this Agreement pursuant
to Section 9.01; and
(iii) to recoup any amounts deposited in the Upper-Tier
Distribution Account in error.
(d) Notwithstanding anything herein to the contrary, with respect to
any Loan, (i) if amounts on deposit in the Collection Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of the Servicing
Fee listed in Section 3.05(a)(ii) and the Trustee Fee and Certificate
Administrator Fee listed in Section 3.05(b)(ii), then the Trustee Fee and
Certificate Administrator Fee shall be paid in full prior to the payment of any
Servicing Fees payable under Section 3.05(a)(ii) and (ii) if amounts on deposit
in the Collection Account are not sufficient to reimburse the full amount of
Advances listed in Sections 3.05(a)(iii), (iv), (v) and (vi), then
reimbursements shall be paid first to the Trustee and then to the Servicer.
(e) Notwithstanding anything herein to the contrary, under no
circumstances shall (i) funds in any account other than the Yield Protection
Payment Account be applied to Yield Protection Payments or (ii) a Yield
Protection Payment Advance be deemed to be an Advance reimbursable pursuant to
Section 3.05(a).
Section 3.06 Investment of Funds in the Collection Account,
Servicing Accounts, Cash Collateral Accounts, Lock-Box Accounts, Policy Escrow
Accounts, the Interest Reserve Account and the REO Account.
(a) The Servicer may direct any depository institution maintaining
the Collection Account, any Servicing Account, any Cash Collateral Account, any
Lock-Box Account, any Policy Escrow Account and the Interest Reserve Account,
and the Special Servicer may direct any depository institution maintaining the
REO Account (any of the foregoing accounts, for purposes of this Section 3.06,
an "Investment Account"), to invest (or if such depository institution is the
Servicer or the Special Servicer, as applicable, it may itself invest) the funds
held therein solely in one or more Permitted Investments bearing interest or
sold at a discount, and maturing, unless payable on demand, (i) no later than
the Business Day immediately preceding the next succeeding date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the depository institution maintaining such account is
the obligor thereon and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
depository institution maintaining such account is the obligor thereon. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such). Funds on deposit in the Excess Interest
Distribution Account, Yield Protection Payment Account and Distribution Accounts
shall remain uninvested.
The Servicer (in the case of any Investment Account other than the
REO Account) or the Special Servicer (in the case of the REO Account), on behalf
of the Trustee, shall maintain continuous possession of any Permitted Investment
of amounts in such accounts that is either (i) a "certificated security," as
such term is defined in the UCC or (ii) other property in which a secured party
may perfect its security interest by possession under the UCC or any other
applicable law. Possession of any such Permitted Investment by the Servicer or
the Special Servicer shall constitute possession by the Trustee, as secured
party, for purposes of Section 9-305 of the UCC and any other applicable law. In
the event amounts on deposit in an Investment Account are at any time invested
in a Permitted Investment payable on demand, the Servicer (in the case of any
Investment Account other than the REO Account) or the Special Servicer (in the
case of the REO Account) shall:
(i)consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or the Special Servicer, as the case may be,
that such Permitted Investment would not constitute a Permitted Investment
in respect of funds thereafter on deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
each of the Collection Account, the Interest Reserve Account, any Cash
Collateral Account, any Lock-Box Account and any Servicing Account, to the
extent of the Net Investment Earnings, if any, with respect to such account for
each period from any Distribution Date to the immediately succeeding P&I Advance
Date shall be for the sole and exclusive benefit of the Servicer to the extent
not required to be paid to the related Borrower and shall be subject to its
withdrawal, or withdrawal at its direction, in accordance with Section 3.03(a),
3.05(a), 3.05(b) or 3.05(c), as the case may be. Interest and investment income
realized on funds deposited in any Policy Escrow Account shall be used to pay
any interest on Advances made with respect to, or any other expenses of the
Trust Fund allocable to, the related Loan, and the Servicer shall not be
entitled to any such interest or investment income. Interest and investment
income realized on funds deposited in the REO Account, to the extent of the Net
Investment Earnings, if any, with respect to such account for each period from
any Distribution Date to the immediately succeeding P&I Advance Date, shall be
for the sole and exclusive benefit of the Trust Fund and shall be subject to its
withdrawal in accordance with Section 3.16(c). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any of the Collection Account,
any Cash Collateral Account, any Lock-Box Account, any Servicing Account or the
REO Account, the Servicer (in the case of the Collection Account, any Cash
Collateral Account, any Lock-Box Account and any Servicing Account) or the
Special Servicer (in the case of the REO Account) shall deposit therein, no
later than the P&I Advance Date, without right of reimbursement, the amount of
the Net Investment Loss, if any, with respect to such account for the period
from the immediately preceding Distribution Date to such P&I Advance Date. The
Servicer shall not be liable for any loss incurred in respect of any Permitted
Investments on deposit in the Policy Escrow Account, provided the Servicer shall
comply with the requirements of Section 3.06(a).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated to
any Class shall, take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
Notwithstanding the investment of funds held in the Collection
Account pursuant to this Section 3.06, for purposes of calculating the Available
Distribution Amount, the amounts so invested shall be deemed to remain on
deposit in such account.
Section 3.07 Maintenance of Insurance Policies; Errors
and Omissions and Fidelity Coverage.
(a) The Servicer as to Loans that are not Specially Serviced Loans
and the Special Servicer as to Specially Serviced Loans shall use their
respective reasonable best efforts to cause the Mortgagor to maintain, to the
extent required by the terms of the related Note and Mortgage, or if the
Mortgagor does not so maintain, shall itself maintain, for each Loan any
Insurance Policy coverage as is required under the related Mortgage (to the
extent that the Trustee has an insurable interest and such Insurance Policy
coverage is available at commercially reasonable rates, as determined by the
Servicer or the Special Servicer, as applicable, in accordance with the
Servicing Standard); provided, however, that, subject to Section 3.07(f), if any
Mortgage permits the holder thereof to dictate to the Mortgagor the Insurance
Policy coverage to be maintained on such Mortgaged Property, the Servicer or the
Special Servicer, as applicable, shall impose such insurance requirements as are
consistent with the Servicing Standard. Subject to Section 3.17(a), the Special
Servicer shall maintain for each REO Property no less Insurance Policy coverage
than was previously required of the Mortgagor under the related Loan.
All such Insurance Policies shall (i) contain a "standard" mortgagee
clause, with loss payable to the Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of Loans other than REO Properties) or the
Special Servicer on behalf of the Trustee (in the case of insurance maintained
in respect of REO Properties), (ii) include coverage in an amount not less than
the lesser of the full replacement cost of the improvements which are a part of
the Mortgaged Property or the outstanding principal balance owing on the related
Loan, but in any case in such an amount so as to avoid the application of any
co-insurance clause, (iii) include a replacement cost endorsement providing no
deduction for depreciation (unless such endorsement is not permitted under the
related Loan Documents) and (iv) be issued by either (x) a Qualified Insurer or
(y) for any Insurance Policy being maintained by the related Mortgagor, an
insurance carrier meeting the requirements of the related Mortgage, provided
that such Qualified Insurer or other insurance carrier is authorized under
applicable law to issue such Insurance Policies. Any amounts collected by the
Servicer or the Special Servicer under any such Insurance Policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with the Servicing Standard and the provisions of the
related Loan) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 3.05(a).
Any costs incurred by the Servicer in maintaining any such Insurance
Policies in respect of Loans (other than with respect to REO Properties) if the
Mortgagor defaults on its obligation to maintain such Insurance Policies shall
be advanced by the Servicer as a Servicing Advance. The amounts so advanced
shall not, for purposes of calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Loan, notwithstanding that the terms of such Loan so permit. Any cost incurred
by the Special Servicer in maintaining any such Insurance Policies with respect
to REO Properties shall be an expense of the Trust Fund payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, advanced by the Servicer as a Servicing
Advance.
(b) (i) If the Servicer or the Special Servicer obtains and
maintains a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Loans or REO Properties, as the case may
be, required to be serviced and administered by it hereunder, and such Insurance
Policy provides protection equivalent to the individual policies otherwise
required, then the Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such blanket Insurance Policy may contain a deductible clause, in
which case if there shall not have been maintained on the related Mortgaged
Property or REO Property a fire and hazard Insurance Policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such Insurance Policy, the Servicer or the
Special Servicer shall promptly deposit into the Collection Account from its own
funds the portion of such loss or losses that would have been covered under the
individual policy (giving effect to any deductible limitation or, in the absence
of such deductible limitation, the deductible limitation that is consistent with
the Servicing Standard) but is not covered under the blanket Insurance Policy
because of such deductible clause. In connection with its activities as
administrator and servicer of the Loans, the Servicer agrees to prepare and
present, on behalf of itself, the Trustee and Certificateholders, claims under
any such blanket Insurance Policy in a timely fashion in accordance with the
terms of such policy. The Special Servicer, to the extent consistent with the
Servicing Standard, may maintain earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates.
(ii) If the Servicer or the Special Servicer causes any Mortgaged
Property or REO Property to be covered by a master single interest Insurance
Policy with a Qualified Insurer naming the Servicer or the Special Servicer as
the loss payee, then to the extent such Insurance Policy provides protection
equivalent to the individual policies otherwise required, the Servicer or the
Special Servicer shall conclusively be deemed to have satisfied its obligation
to cause such insurance to be maintained on the related Mortgage Properties and
REO Properties. If the Servicer or the Special Servicer causes any Mortgaged
Property or REO Property to be covered by such master single interest Insurance
Policy, the incremental costs of such insurance applicable to such Mortgaged
Property or REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgaged Property or REO Property is
covered thereby) shall be paid by the Servicer out of its own funds. Such master
single interest Insurance Policy may contain a deductible clause, in which case
the Servicer or the Special Servicer shall, if (A) there shall not have been
maintained on the related Mortgaged Property or REO Property a policy otherwise
complying with the provisions of Section 3.07(a) and (B) there shall have been
one or more losses which would have been covered by such policy had it been
maintained, deposit into the Collection Account from its own funds the amount
not otherwise payable under the master single interest Insurance Policy because
of such deductible clause, to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard.
(c) Each of the Servicer and Special Servicer shall maintain with
responsible companies, at their own expense, a blanket fidelity bond (a
"Fidelity Bond") and an errors and omissions insurance policy with a Qualified
Insurer, with broad coverage on all officers, employees or other personnel
acting in any capacity requiring such persons to handle funds, money, documents
or paper relating to the Loans ("Servicer Employees," in the case of the
Servicer, and "Special Servicer Employees," in the case of the Special
Servicer). Any such Fidelity Bond and errors and omissions insurance shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions, failure to maintain any insurance
policies required pursuant to the Agreement and negligent acts of such Servicer
Employees or Special Servicer Employees. Such errors and omissions policy shall
also protect and insure the Servicer against losses in connection with the
release or satisfaction of a Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section requiring such
Fidelity Bond and errors and omissions insurance shall diminish or relieve the
Servicer or Special Servicer from its duties and obligations as set forth in
this Agreement.
The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to the greater of (i) the
amount necessary for the Servicer or Special Servicer, as applicable, to qualify
as a FNMA or FHLMC servicer or in an amount that would meet the requirements of
prudent institutional commercial mortgage loan servicers for similar
transactions, and (ii) $1,000,000. The Servicer or the Special Servicer, as
applicable, shall cause the Trustee, on behalf of the Trust, to be named as a
loss payee on each such Fidelity Bond and errors and omissions policy.
Notwithstanding the foregoing, so long as the long-term debt or the deposit
obligations or claims-paying ability of the Servicer or Special Servicer (or its
immediate or remote parent) is rated at least "A" by DCR, "A2" by Moody's and
"A" by Fitch (or, if not rated by Fitch, upon written confirmation by Fitch that
self-insurance by the Servicer or the Special Servicer, as applicable, with
respect to a Fidelity Bond would not by reason thereof cause Fitch to qualify,
downgrade or withdraw the then-current rating assigned to any of the
Certificates that are currently being rated by Fitch), the Servicer or the
Special Servicer, respectively, shall be allowed to provide self-insurance with
respect to a Fidelity Bond and such errors and omissions policy. The amount of
coverage shall be at least equal to the coverage that would be required by FNMA
or FHLMC or in an amount that would meet the requirements of prudent
institutional commercial mortgage loan servicers for similar transactions, with
respect to the Servicer or the Special Servicer if the Servicer or the Special
Servicer, as applicable, were servicing and administering the Loans or Specially
Serviced Loans, as applicable, for FNMA or FHLMC. Coverage of the Servicer or
the Special Servicer under a policy or bond obtained by an Affiliate of the
Servicer or the Special Servicer and providing the coverage required by this
Section 3.07(c) shall satisfy the requirements of this Section 3.07(c).
The Special Servicer and the Servicer will promptly report in
writing to the Trustee any material changes that may occur in their respective
Fidelity Bonds, if any, and/or their respective errors and omissions Insurance
Policies, as the case may be, and will furnish to the Trustee copies of all
binders and policies or certificates evidencing that such bonds, if any, and
insurance policies are in full force and effect.
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (if flood insurance has been made
available), the Servicer will use its reasonable best efforts to cause the
related Mortgagor (in accordance with applicable law and the terms of the Loan
Documents) to maintain, and, if the related Mortgagor shall default in its
obligation to so maintain, shall itself maintain to the extent available at
commercially reasonable rates (as determined by the Servicer in accordance with
the Servicing Standard), flood insurance in respect thereof, but only to the
extent the related Loan permits the mortgagee to require such coverage and the
maintenance of such coverage is consistent with the Servicing Standard. Such
flood insurance shall be in an amount equal to the least of (i) the unpaid
principal balance of the related Loan, (ii) the maximum amount of insurance
which is available under the Flood Disaster Protection Act of 1973, as amended,
and (iii) the amount required by the Loan. If the cost of any insurance
described above is not borne by the Mortgagor, the Servicer shall promptly make
a Servicing Advance for such costs, subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standard), a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust Fund payable out of
the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer as a Servicing Advance.
(f) Notwithstanding the provisions of the related Mortgage and any
other provision of this Agreement, but otherwise in accordance with the
Servicing Standard, the Servicer shall not require any Mortgagor to obtain
insurance in excess of the amounts of coverage and deductibles heretofore
required by the applicable Mortgage Loan Seller in connection with the
origination of the related Loan (such amounts, with respect to each Loan, the
"Origination Required Insurance Amounts"), unless the Servicer determines, in
accordance with the Servicing Standard, that such Origination Required Insurance
Amounts would not be prudent for property of the same type as the related
Mortgaged Property. The Servicer shall require that each policy of
business-interruption insurance maintained by a Mortgagor have a minimum term of
at least twelve months. The Depositor shall provide evidence to the Servicer of
the Origination Required Insurance Amounts for each Mortgaged Property.
Section 3.08 Enforcement of Due-On-Sale and Due-On-Encumbrance
Clauses; Assumption Agreements; Defeasance Provisions.
(a) (i) As to each Loan which contains a provision in the nature of
a "due-on-sale" clause, which by its terms:
(A) provides that such Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property or the related Borrower
or
(B) provides that such Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
the Servicer shall provide notice to the Special Servicer of any request for a
waiver thereof, and the Special Servicer (whether or not such Loan is a
Specially Serviced Loan) shall enforce such due-on-sale clause, unless the
Special Servicer determines, in accordance with the Servicing Standard, that (1)
not declaring an Event of Default (as defined in the related Mortgage) or (2)
granting such consent would be likely to result in a greater recovery (or an
equal recovery, provided the other conditions for an assumption or waiver of a
due-on-sale clause are met), on a present value basis (discounting at the
related Mortgage Rate), than would enforcement of such clause or the failure to
grant such consent. If the Special Servicer determines that (1) not declaring an
Event of Default (as defined in the related Mortgage) or (2) granting such
consent would be likely to result in a greater recovery (or an equal recovery,
provided the other conditions for an assumption or waiver of a due-on-sale
clause are met), the Special Servicer shall take or enter into an assumption
agreement from or with the proposed transferee as obligor thereon, provided that
(x) the credit status of the prospective transferee is in compliance with the
Special Servicer's regular commercial mortgage loan origination criteria or the
Servicing Standard and the terms of the related Mortgage and (y) with respect to
any Loan which is a Significant Loan, the Special Servicer shall have received
written confirmation from each of the Rating Agencies that such assumption would
not, in of itself, cause a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates.
(ii) Notwithstanding the provisions of any Loan, foreclosure by a
Mezzanine Loan Holder on any Mezzanine Loan Collateral securing a
Mezzanine Loan to an affiliate of the related Borrower shall not, for
purposes of this Agreement, be deemed to be a violation of the due-on-sale
clause of the related Loan Documents or of clause (i) of this Section
3.08(a) so long as the foreclosing party is a Permitted Mezzanine Loan
Holder.
(iii) Neither the Servicer nor the Special Servicer shall (x)
consent to the foreclosure of any Mezzanine Loan other than by a Permitted
Mezzanine Loan Holder or (y) consent to the transfer of any Mezzanine Loan
except to a Permitted Mezzanine Loan Holder, except, in each case, as
otherwise provided in Section 3.08(a)(i). Neither the consent of the
Servicer nor the consent of the Special Servicer shall be required for the
foreclosure by a Permitted Mezzanine Loan Holder if an event of default
has been declared under the related Loan (and each Rating Agency has been
notified of such event of default). In no event shall a Mezzanine Loan
Holder be required to pay any assumption fee, modification fee or other
service charge in connection with any foreclosure upon Mezzanine Loan
Collateral, transfer of ownership of the related Mortgaged Property to
such Mezzanine Loan Holder and/or assumption of the related Loan. Nothing
herein shall prevent a Mezzanine Loan Holder from appointing a receiver or
trustee with respect to any Mezzanine Loan Collateral, foreclosing upon
any reserves, escrow accounts or cash collateral accounts pledged under
the related Mezzanine Loan (provided none of such accounts have been
pledged under the related Loan) or otherwise taking an assignment of any
cash flows from any Mezzanine Loan Collateral.
(b) As to each Loan which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i)provides that such Loan shall (or, at the mortgagee's option,
may) become due and payable upon the creation of any additional lien or
other encumbrance on the related Mortgaged Property or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
the Servicer shall provide notice to the Special Servicer of any request for a
waiver thereof, and the Special Servicer (whether or not such Loan is a
Specially Serviced Loan) shall enforce such due-on-encumbrance clause and in
connection therewith shall (i) accelerate payments thereon or (ii) withhold its
consent to such lien or encumbrance unless the Special Servicer (x) determines,
in accordance with the Servicing Standard, that (1) not accelerating payments on
such Loan or (2) granting such consent would result in a greater recovery on a
present value basis (discounting at the related Mortgage Rate) than would
enforcement of such clause or the failure to grant such consent and (y) receives
prior written confirmation from each of the Rating Agencies that (1) not
accelerating such payments or (2) granting such consent would not, in and of
itself, cause a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, the Special
Servicer shall not agree to modify, waive or amend any term of any Loan in
connection with the taking of, or the failure to take, any action pursuant to
this Section 3.08.
(e) Notwithstanding any other provisions of this Section 3.08, the
Servicer may grant a Mortgagor's request for consent to subject the related
Mortgaged Property to an easement or right-of-way for utilities, access,
parking, public improvements or another purpose and may consent to subordination
of the related Loan to such easement or right-of-way, provided that the Servicer
shall have determined (i) in accordance with the Servicing Standard that such
easement or right-of-way will not materially interfere with the then-current use
of the related Mortgaged Property or the security intended to be provided by
such Mortgage and will not materially or adversely affect the value of such
Mortgaged Property and (ii) that no REMIC created hereunder will fail to qualify
as a REMIC as a result thereof and that no tax on "prohibited transactions" or
"contributions" after the Closing Date would be imposed on either REMIC created
hereunder as a result thereof. The Servicer shall use reasonable efforts,
consistent with the Servicing Standard, to cause the Mortgagor, at the
Mortgagor's expense, to obtain legal advice to make the determination described
in clause (ii). If the Servicer is unable to cause the Mortgagor to obtain such
legal advice, the Servicer shall obtain such legal advice, if necessary, in
accordance with the Servicing Standard, and the cost thereof shall be deemed a
Servicing Advance.
(f) With respect to any Loan which permits release of Mortgaged
Properties through defeasance (each, a "Defeasance Loan"), to the extent
permitted under the related Loan Documents:
(i) The Servicer, with the consent of the Special Servicer, shall
effect such defeasance only through the purchase of U.S. government
obligations satisfying both the defeasance rule of the REMIC Provisions
("Defeasance Collateral") and the requirements of clause (i) of the
definition of Permitted Investments herein which purchase shall be made in
accordance with the terms of such Loan; provided, however, that the
Servicer shall not accept the amounts paid by the related Borrower to
effect defeasance until such U.S. government obligations have been
identified and an Independent accounting firm has provided the Servicer a
comfort letter that states that such defeasance is in the correct amount
and is in other respects in accordance with the terms of such Loan and
provided, further, that no defeasance shall be accepted within two years
after the Closing Date.
(ii) If such Loan permits the assumption of the obligations of
the related Borrower by a successor mortgagor, the Servicer, with the
consent of the Special Servicer, shall cause the Borrower to pay all
expenses incurred in connection with the establishment of a successor
Borrower that shall be a Single-Purpose Entity and cause an assumption by
such successor Borrower of the defeased obligations under the related
Note. The Servicer shall be permitted to establish a single Single-Purpose
Entity to assume the defeased obligations under all of the Loans that have
been defeased.
(iii) The Servicer shall require an Opinion of Counsel from the
related Borrower, at such Borrower's expense, to the effect that the
Trustee has a first priority security interest in the defeasance deposit
and the related U.S. government obligations and that the assignment
thereof is valid and enforceable.
(iv) The Servicer shall obtain at the related Borrower's expense
a certificate from an Independent certified public accountant certifying
that the U.S. government obligations are sufficient to make all scheduled
payments under the related Note.
(v) Prior to permitting release of any Mortgaged Property through
defeasance, if such defeasance is a partial defeasance or such Mortgaged
Property relates to a Loan that is (x) a Loan, (y) part of a group of
Crossed Loans or (z) part of a group of Loans made to affiliated Borrowers
that, in each case, in the aggregate, represents one of the ten largest
loans (which for the purposes of this definition shall include groups of
Crossed Loans and groups of Loans made to affiliated Borrowers), the
Servicer shall obtain, at the expense of the related Borrower, written
confirmation from Fitch that such defeasance would not, in and of itself,
result in a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates. Prior to permitting
release of any Mortgaged Property through defeasance, in the event the
conditions specified in (i) through (iv) above are not met, the Borrower
shall be required to obtain such written confirmation from DCR and
Moody's.
(vi) Neither the Servicer nor the Special Servicer shall permit
the release of any Mortgaged Property through defeasance unless the
related Borrower establishes to the satisfaction of the Servicer or the
Special Servicer that the lien on such Mortgaged Property will be released
to facilitate the disposition thereof or to facilitate any other customary
commercial transaction.
(vii) Prior to permitting release of any Mortgaged Property
through defeasance, if the related Loan so requires and provides for the
related Borrower to pay the cost thereof, the Servicer shall require such
Borrower to deliver an Opinion of Counsel to the effect that such release
will not cause either REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding or cause a tax to
be imposed on the Trust Fund under the REMIC Provisions.
(viii) Neither the Servicer nor the Special Servicer shall permit
a partial defeasance with respect to any Loan unless the value of the
Defeasance Collateral is at least the amount provided in the related Loan
Documents.
Any costs to the Servicer of obtaining legal advice to make the determinations
required to be made by it pursuant to this Section 3.08(f), or obtaining the
Rating Agency confirmations required by this Section 3.08(f), shall be borne by
the related Borrower as a condition to the Servicer's obligation to effect the
defeasance of the related Loan or advanced as a Servicing Advance by the
Servicer.
(g) With respect to any Loan having the benefit of a Residual Value
Policy, neither the Servicer nor the Special Servicer shall agree to any
modification to, or waiver of any term of, the related Residual Value Policy (i)
without written confirmation by each Rating Agency that such modification or
waiver would not, in and of itself, result in a downgrade, qualification or
withdrawal of any of the current ratings assigned to the Certificates and (ii)
without a determination that such modification or waiver will not constitute a
"significant modification" under the REMIC Provisions. Any costs to the Servicer
of obtaining legal advice to make the determinations required to be made by it
pursuant to this Section 3.08(g), or obtaining the Rating Agency confirmations
required by this Section 3.08(g), shall be borne by the related Borrower as a
condition to the Servicer's obligation to agree to any modification or waiver
referred to in the preceding sentence.
(h) With respect to any Loan, neither the Servicer nor the Special
Servicer shall permit the related Borrower to substitute any real property, any
rights with respect to real property, or any other property interest whatsoever
for the Mortgaged Property securing such Loan as of the Closing Date without
receipt of an Opinion of Counsel, at the expense of the Borrower, to the effect
that the substitution will not cause the related Loan to fail to qualify as a
"qualified mortgage" as defined under Section 860G(a)(3) of the Code while such
Loan is owned by the Lower-Tier REMIC.
(i) With respect to any Loan pursuant to which the Borrower may not
incur additional indebtedness encumbering the related Mortgaged Property without
the consent of the lender, neither the Servicer nor the Special Servicer shall
consent to such additional debt without written confirmation to the Servicer or
the Special Servicer, as applicable, and the Trustee by each Rating Agency that
such modification or waiver would not, in and of itself, result in a downgrade,
qualification or withdrawal of any of the current ratings assigned to the
Certificates. Any costs to the Servicer of obtaining the Rating Agency
confirmations required by this Section 3.08(i) shall be borne by the related
Borrower as a condition to the Servicer's obligation to agree to any
modification or waiver referred to in the preceding sentence.
Section 3.09 Realization upon Defaulted Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which may
include an REO Acquisition) the ownership of any property securing such Loans as
come into and continue in default as to which no satisfactory arrangements can
be made for collection of delinquent payments, and which are not released from
the Trust Fund pursuant to any other provision hereof. In any case in which a
Mortgaged Property shall have suffered damage such that the complete restoration
of such property is not fully reimbursable by the hazard insurance policies or
flood insurance policies required to be maintained pursuant to Section 3.07, the
Servicer shall not be required to make a Servicing Advance and expend funds
toward the restoration of such property unless the Special Servicer has
determined in its reasonable judgment in accordance with the Servicing Standard
that such restoration will increase the net proceeds of liquidation of such
Mortgaged Property to Certificateholders after reimbursement to the Servicer for
such Servicing Advance and interest thereon and the Servicer has determined that
such Servicing Advance together with accrued and unpaid interest thereon will be
recoverable by the Servicer out of the proceeds of liquidation of such Mortgaged
Property, as contemplated in Section 3.05(a)(iv). The Special Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings (such costs and expenses to be advanced by the Servicer to the
Special Servicer and recoverable by the Servicer as a Servicing Advance),
provided that, in each case, such cost or expense would not, if incurred,
constitute a Nonrecoverable Servicing Advance.
Nothing contained in this Section 3.09 shall be construed to require
the Servicer or the Special Servicer, on behalf of the Trust Fund, to make a bid
on any Mortgaged Property at a foreclosure sale or similar proceeding that is in
excess of the fair market value of such property, as determined by the Servicer
or the Special Servicer in its reasonable and good faith judgment taking into
account the factors described in Section 3.18(d) and the results of any
Appraisal obtained pursuant to the following sentence, all such bids to be made
in a manner consistent with the Servicing Standard. If and when the Special
Servicer or the Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Loan, whether for purposes of bidding at foreclosure or otherwise, the
Special Servicer or the Servicer, as the case may be, is authorized to have an
Appraisal performed with respect to such property, the cost of which Appraisal
shall be paid by the Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired
by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be a Servicing Advance) to the effect
that the holding of such personal property by the Trust Fund will not
cause the imposition of a tax on either REMIC created hereunder under the
REMIC Provisions or cause either REMIC created hereunder to fail to
qualify as a REMIC at any time that any Uncertificated Lower-Tier Interest
or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
the Special Servicer shall not, on behalf of the Trustee, obtain title to a
Mortgaged Property in lieu of foreclosure or otherwise, or take any other action
with respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders, would be considered to hold title
to, to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of
such Mortgaged Property within the meaning of CERCLA or any comparable law,
unless (as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on an Environmental Assessment of such Mortgaged
Property performed within the preceding 12 months by an Independent Person who
regularly conducts Environmental Assessments, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a present value basis
than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a present value basis than not
taking such actions.
The cost of any such Environmental Assessment and the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence shall be paid by the Servicer as a
Servicing Advance. If any such Environmental Assessment so warrants, the Special
Servicer shall, at the expense of the Trust Fund, perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (ii) of the second preceding sentence
have been satisfied.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Loan and (ii) there has been no breach
of any of the representations and warranties set forth in or required to be made
pursuant to Section 6 of the related Mortgage Loan Purchase Agreement for which
the related Mortgage Loan Seller, FINOVA or FINOVA Capital, as applicable, could
be required to repurchase such Defaulted Loan pursuant to Section 7 of the
related Mortgage Loan Purchase Agreement or Section 9.3 of the related FINOVA
Mortgage Loan Purchase Agreement, as applicable, then the Special Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund and consistent with the Servicing Standard (other than proceeding to
acquire title to the Mortgaged Property) and is hereby authorized at such time
as it deems appropriate to release such Mortgaged Property from the lien of the
related Mortgage.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Custodian, the Servicer and the Certificate
Owners of the Controlling Class monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a Defaulted
Loan as to which the environmental testing contemplated in subsection (c) above
has revealed that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied, in each case the earlier to
occur of satisfaction of both such conditions, repurchase of the related Loan by
the related Mortgage Loan Seller, FINOVA or FINOVA Capital, as applicable, or
release of the lien of the related Mortgage on such Mortgaged Property;
provided, however, that with respect to each such report or Environmental
Assessment, if beneficial ownership of the Controlling Class resides in more
than one Certificate Owner, the Special Servicer shall be responsible only for
the expense of providing the first such copy thereof and shall be entitled to
reimbursement from the Trust Fund for the expense of any additional copies so
provided. The Custodian shall, upon request, forward all such reports to the
Certificateholders and each Rating Agency promptly following the receipt
thereof.
(f) The Servicer shall report to the Internal Revenue Service and
the related Mortgagor, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property which is abandoned or
foreclosed, the receipt of mortgage interests received in a trade or business
and the forgiveness of indebtedness with respect to any mortgaged property
required by Sections 6050J, 6050H and 6050P, respectively, of the Code. The
Special Servicer shall provide the Servicer with such information or reports as
the Servicer deems necessary to fulfill its obligations under this Section
3.09(f) promptly upon the Servicer's request therefor. The Servicer shall
deliver a copy of any such report to the Trustee and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Servicer no later than the next succeeding P&I Advance
Determination Date.
Section 3.10 Custodian to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Loan, or the receipt by the
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Custodian 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 Collection Account pursuant to Section 3.04(a) or remitted to
the Servicer to enable such deposit, have been or will be so deposited. Within
six Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer notifies the Trustee of an exigency) of receipt of
such notice and request, the Trustee (or, to the extent provided in Section
3.01(b), the Servicer or the Special Servicer, as applicable) shall execute such
instruments of satisfaction, deeds of reconveyance and other documents as shall
have been furnished to it by the Servicer, and the Custodian shall release and
deliver the related Mortgage File to the Servicer or Special Servicer, as the
case may be. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Loan, the Servicer or the Special Servicer shall deliver to the Custodian
a Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Custodian shall 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 the Mortgage File to the Custodian, the Custodian shall execute
an acknowledgment of receipt.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the release of a Loan or REO Loan, or to
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Note or Mortgage
or to obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Note or Mortgage or otherwise available at law or in equity. The
Special Servicer shall be responsible for the preparation of all such documents
and pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required, that the
proposed action is in the best interest of the Certificateholders and that the
execution and delivery thereof by the Trustee will not invalidate or otherwise
affect the lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall
be entitled to receive the Servicing Fee with respect to each Loan and REO Loan
(including Specially Serviced Loans, Defeasance Loans and Additional Collateral
Loans) at the Servicing Fee Rate (in accordance with the same terms of the
related Note as are applicable to the accrual of interest at the Mortgage Rate),
computed on the basis of the Stated Principal Balance of such Loan on a 30/360
basis. The Servicing Fee with respect to any Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. The Servicing Fee shall
be payable monthly, on a loan-by-loan basis, from payments of interest on each
Loan and REO Revenues allocable as interest on each REO Loan. In no event will
the Servicer or any Primary Servicer be entitled to retain a servicing fee from
the amount of any P&I Advance, regardless of whether the related Borrower is
obligated to reimburse Servicing Fees or Primary Servicing Fees.
The Servicer, on behalf of itself or any Primary Servicer, shall be
entitled to recover unpaid Servicing Fees and Primary Servicing Fees in respect
of any Loan or REO Loan out of that portion of related payments, Insurance and
Condemnation Proceeds, Liquidation Proceeds and REO Revenues (in the case of an
REO Loan) allocable as recoveries of interest, to the extent permitted by
Section 3.05(a). The right to receive the Servicing Fee (and, except to the
extent set forth in the Primary Servicing Agreement with respect to a Primary
Servicer and except as set forth in this Section 3.11(a), the related Primary
Servicing Fee) may not be transferred in whole or in part except in connection
with the transfer of all of the Servicer's responsibilities and obligations
under this Agreement. The CSFB Mortgage Loan Seller shall pay the annual fees of
each Rating Agency directly to each Rating Agency. The parties hereto
acknowledge that the annual fees of each Rating Agency allocable to the MS Loans
have been paid on or prior to the Closing Date by the MS Mortgage Loan Seller.
Additional servicing compensation in the form of (i) one-half of all
assumption fees paid by the Mortgagors on all Loans that are not Specially
Serviced Loans (but only to the extent that all amounts then due and payable
with respect to such Loans (except for interest on Advances then outstanding)
have been paid), (ii) charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, (iii) all commercially
reasonable fees received on or with respect to Loan modifications for which the
Servicer is responsible pursuant to Section 3.20(a)(ii) (but only to the extent
actually collected from the related Mortgagor and only to the extent that all
amounts then due and payable after giving effect to any modification with
respect to the related Loan have been paid), (iv) reasonable and customary
consent fees and fees in connection with defeasance, if any, and (v) other
customary charges, in each case only to the extent actually paid by the related
Mortgagor, shall be retained by the Servicer and shall not be required to be
deposited in the Collection Account pursuant to Section 3.04(a).
The Servicer also shall be entitled to additional servicing
compensation in the form of: (i) Penalty Charges received on each Loan (other
than Specially Serviced Loans) but only to the extent actually paid by the
related Mortgagor and to the extent that all amounts then due and payable with
respect to such Loan (including outstanding interest on all Advances accrued
with respect to such Loan) have been paid to the Servicer; (ii) interest or
other income earned on deposits relating to the Trust Fund in the Collection
Account, any Cash Collateral Account and any Lock-Box Account in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to each such account for each period from any Distribution Date to
the immediately succeeding P&I Advance Date); (iii) interest earned on deposits
in the Servicing Accounts that is not required by applicable law or the related
Loan to be paid to the Mortgagor; and (iv) collections representing Prepayment
Interest Excess for any Distribution Date (other than the greater of (x) with
respect to any Loan whose terms expressly permit collections of interest through
the following Due Date in connection with any voluntary Principal Prepayment and
(y) the aggregate of the Uncovered Prepayment Interest Shortfalls for such
Distribution Date). Notwithstanding anything to the contrary in clause (i) of
the first sentence of this paragraph or in the last paragraph of Section
3.11(b), (x) the Servicer shall be entitled to that portion, if any, of a
Penalty Charge collected on a Specially Serviced Loan that accrued prior to the
related Servicing Transfer Event and (y) if the Special Servicer has partially
waived any Penalty Charge part of which accrued prior to the related Servicing
Transfer Event, any collections in respect of such Penalty Charge shall be
shared pro rata by the Servicer and the Special Servicer based on the respective
portions of such Penalty Charge to which they would otherwise have been
entitled.
Wells Fargo Bank, National Association ("Wells Fargo"), as initial
Servicer hereunder, shall also be entitled to receive all Primary Servicing Fees
on any Loan and REO Loan (including any Specially Serviced Loan and Defeasance
Loan) which is not serviced by a Primary Servicer, computed on the basis of the
related Stated Principal Balance and for the same period and in the same manner
respecting which any related interest payment due (or deemed to be due) on the
related Loan is computed. Wells Fargo's right to receive such Primary Servicing
Fees in accordance with the provisions hereof shall not be terminated under any
circumstance, including transfer of the servicing or subservicing of the Loans
to another entity. Wells Fargo shall be permitted to assign such Primary
Servicing Fees to any party without restriction.
Except as specifically provided herein, the Servicer shall be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due, except for premiums for any blanket Insurance Policy
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Collection Account, and the
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
Notwithstanding the foregoing paragraphs of this Section 3.11, the
Servicing Fee on any Loan, other than a Specially Serviced Loan, and the
investment income earned on any Principal Prepayment made on such Loan during a
given Due Period, and due the Servicer on the related Distribution Date shall be
reduced by the Prepayment Interest Shortfall, if any, on such Loan for such
Distribution Date; provided, however, that with respect to any Additional
Collateral Loans as to which Additional Collateral is paid as a Principal
Prepayment, neither the Servicing Fee on such Loan, nor the investment income
earned on any such Principal Prepayment, shall be reduced by the Prepayment
Interest Shortfall.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Loan (other than the L'Enfant Participation) and REO
Loan (other than the L'Enfant Participation). As to each such Specially Serviced
Loan and REO Loan, the Special Servicing Fee shall accrue at the Special
Servicing Fee Rate (in accordance with the same terms of the related Note as are
applicable to the accrual of interest at the Mortgage Rate) and shall be
computed on the basis of the Stated Principal Balance of such Specially Serviced
Loan and for the same period respecting which any related interest payment due
on such Specially Serviced Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced Loan
or REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. The Special Servicing Fee shall be payable monthly, on a loan-by-loan
basis, to the extent permitted by Section 3.05(a). The right to receive the
Special Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer's responsibilities
and obligations under this Agreement. The Special Servicing Fee with respect to
any related Other Mortgage Loan shall be payable under the related Co-Lender
Agreement (which amount may be netted against amounts payable to the holder of
the Other Note).
Additional servicing compensation in the form of (i) all assumption
fees on all Specially Serviced Loans, (ii) one-half of all assumption fees on
any Loans other than Specially Serviced Loans and (iii) all commercially
reasonable extension fees and all fees received on or with respect to Loan
modifications for which the Special Servicer is responsible pursuant to Section
3.20(a), but only to the extent actually collected from the related Mortgagor
and only to the extent that all amounts then due and payable after giving effect
to any modification with respect to the related Loan (including those payable to
the Servicer pursuant to Section 3.11(a)) have been paid, shall be promptly paid
to the Special Servicer by the Servicer and shall not be required to be
deposited in the Collection Account pursuant to Section 3.04(a).
The Special Servicer shall also be entitled to additional servicing
compensation in the form of a Workout Fee with respect to each Corrected Loan at
the Workout Fee Rate. The "Workout Fee Rate" means (i) 1.0% for any Loan with a
Stated Principal Balance of less than $10,000,000, (ii) 0.75% for any Loan with
a Stated Principal Balance equal to or greater than $10,000,000 but less than
$20,000,000 and (iii) 0.5% for any Loan with a Stated Principal Balance equal to
or greater than $20,000,000, applied to each collection of interest and
principal (including scheduled payments, prepayments, Balloon Payments and
payments at maturity) received on such Loan for so long as it remains a
Corrected Loan. The Workout Fee with respect to any Corrected Loan will cease to
be payable if such Loan again becomes a Specially Serviced Loan; provided that a
new Workout Fee will become payable if and when such Loan again becomes a
Corrected Loan. If the Special Servicer is terminated (other than for cause or
by resignation), it shall retain the right to receive any and all Workout Fees
payable with respect to Loans that became Corrected Loans during the period that
it acted as Special Servicer and were Corrected Loans at the time of such
termination (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the terms hereof.
A Liquidation Fee will be payable with respect to each Specially
Serviced Loan as to which the Special Servicer receives any Liquidation Proceeds
subject to the exceptions set forth in the definition of Liquidation Fee. As to
each Specially Serviced Loan, the Liquidation Fee will be payable out of, and
will be calculated by application of a "Liquidation Fee Rate" of (i) 1.0% for
any Loan with a Stated Principal Balance of less than $10,000,000, (ii) 0.75%
for any Loan with a Stated Principal Balance equal to or greater than
$10,000,000 but less than $20,000,000, and (iii) 0.5% for any Loan with a Stated
Principal Balance equal to or greater than $20,000,000, in each case expressed
as a percentage of net liquidation proceeds received with respect to such
Specially Serviced Loan.
Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Loan by any Mortgage Loan
Seller, FINOVA or FINOVA Capital for a breach of representation or warranty or
by any Mortgage Loan Seller for defective or deficient Loan documentation, the
purchase of any Specially Serviced Loan by the Servicer or the Special Servicer,
the purchase by the Holders of the Class V-1 or Class V-2 Certificates, of any
ARD Loan pursuant to Section 9.03 or the purchase of all of the Loans and REO
Properties in connection with an optional termination of the Trust Fund pursuant
to Section 9.01. If, however, Liquidation Proceeds are received with respect to
any Corrected Loan and the Special Servicer is properly entitled to a Workout
Fee, such Workout Fee will be payable based on and out of the portion of such
Liquidation Proceeds that constitute principal and/or interest on such Loan.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on each Specially Serviced Loan (but only to the extent
actually collected from the related Mortgagor and to the extent that all amounts
then due and payable with respect to such Specially Serviced Loan (including
outstanding interest on all Advances accrued with respect to such Specially
Serviced Loan) have been paid to the Special Servicer). The Special Servicer
shall be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts, other than management fees in respect of REO
Properties, due and owing to any of its Sub-Servicers and the premiums for any
blanket Insurance Policy obtained by it insuring against hazard losses pursuant
to Section 3.07), if and to the extent such expenses are not payable directly
out of the Collection Account or the REO Account, and the Special Servicer shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
Section 3.12 Reports to the Certificate Administrator;
Collection Account Statements.
(a) The Servicer shall deliver to the Certificate Administrator and
the Special Servicer, no later than 1:00 p.m. New York City time on the second
Business Day prior to the Distribution Date, the Servicer Remittance Report in
CMSA format (as in effect from time to time) with respect to the related
Distribution Date (which shall include, without limitation, the Available
Distribution Amount) including the anticipated P&I Advances and Servicing
Advances for the related Distribution Date and any accrued but unpaid interest
on Advances. As to each Mortgage Loan, the Servicer shall provide to the Special
Servicer, by the close of business on each Distribution Date and in a mutually
agreeable electronic format, the amount of each outstanding Advance and the
interest accrued thereon as of such Distribution Date. The Servicer shall begin
all reporting hereunder in CMSA format no later than the Servicer Remittance
Date for January 2000. The Servicer's responsibilities under this Section
3.12(a) with respect to Specially Serviced Loans and REO Loans shall be subject
to the satisfaction of the Special Servicer's obligations under Section 3.21.
(b) For so long as the Servicer makes deposits into and withdrawals
from the Collection Account, not later than 30 days after each Distribution
Date, the Servicer shall forward to the Certificate Administrator a statement
setting forth the status of the Collection Account as of the close of business
on the last Business Day of the related Due Period showing the aggregate amount
of deposits into and withdrawals from the Collection Account of each category of
deposit specified in Section 3.04 and each category of withdrawal specified in
Section 3.05 for the related Due Period.
(c) No later than 1:00 p.m. New York City time on the Servicer
Remittance Date, the Servicer shall deliver or cause to be delivered to the
Trustee and the Certificate Administrator the following reports with respect to
the Loans (and, if applicable, the related REO Properties, providing the
required information as of the related Determination Date): (i) a Comparative
Financial Status Report, (ii) a Delinquent Loan Status Report; (iii) an
Historical Loan Modification Report; (iv) an Historical Loss Estimate Report;
and (v) an REO Status Report. Such reports shall be in a CMSA electronic format
reasonably acceptable to both the Certificate Administrator and the Servicer.
The Servicer and the Special Servicer shall also deliver or cause to be
delivered on the Servicer Remittance Date, the Property File (to the extent
prepared by and received from the related L'Enfant Servicer or L'Enfant Special
Servicer in the case of any REO Property or any Mortgaged Property that
constituted or constitutes security for the L'Enfant Participation; provided
that the Servicer will make reasonable efforts, consistent with the Servicing
Standard, to obtain such reports from the L'Enfant Servicer or L'Enfant Special
Servicer).
On the Closing Date, the Servicer shall deliver to the Certificate
Administrator the Loan Set-Up File. On the Business Day prior to each Servicer
Remittance Date, the Servicer and Special Servicer shall deliver to the
Certificate Administrator the Loan Periodic File with respect to each Loan and
REO Loan (to the extent prepared by and received from the related L'Enfant
Servicer or L'Enfant Special Servicer in the case of any REO Property or any
Mortgaged Property that constituted or constitutes security for the L'Enfant
Participation; provided that the Servicer will make reasonable efforts,
consistent with the Servicing Standard, to obtain such reports from the L'Enfant
Servicer or L'Enfant Special Servicer).
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer in writing and on a computer
readable medium reasonably acceptable to the Servicer and the Special Servicer
by 4:00 p.m. New York City time on the fourth Business Day prior to the related
Servicer Remittance Date in the form required under Section 3.12(f) or shall be
provided by means of such reports so delivered by the Special Servicer to the
Servicer in the form so required. The Servicer's responsibilities under this
Section 3.12(c) with respect to REO Loans and Specially Serviced Loans shall be
subject to the satisfaction of the Special Servicer's obligations under Section
3.12(f). In the absence of manifest error, the Servicer shall be entitled to
conclusively rely upon, without investigation or inquiry, the information and
reports delivered to it by the Special Servicer, and the Certificate
Administrator shall be entitled to conclusively rely upon the Servicer's reports
and the Special Servicer's reports without any duty or obligation to recompute,
verify or recalculate any of the amounts and other information stated therein.
Servicer shall provide to the Certificate Administrator any new data that
Servicer collects or reports in electronic format in its ordinary course of
servicing.
(d) The Servicer shall deliver or cause to be delivered to the
Certificate Administrator the following materials, in each case to the extent
that such materials or the information on which they are based have been
received by the Servicer:
(i) At least annually by May 31, commencing May 31, 2000, with
respect to each Loan and REO Loan (to the extent prepared by and timely
received from the Special Servicer in the case of any Specially Serviced
Loan or REO Loan and to the extent prepared by and received from the
related L'Enfant Servicer or L'Enfant Special Servicer in the case of any
REO Property or any Mortgaged Property that constituted or constitutes
security for the L'Enfant Participation; provided that the Servicer will
make reasonable efforts, consistent with the Servicing Standard, to obtain
such reports from the L'Enfant Servicer or L'Enfant Special Servicer), an
Operating Statement Analysis Report and NOI Adjustment Worksheet for the
related Mortgaged Property or REO Property as of the end of the preceding
fiscal year, together with copies of the operating statements and rent
rolls (but only to the extent the related Borrower delivers such
information to the Servicer and, with respect to operating statements and
rent rolls for Specially Serviced Loans and REO Properties, to the extent
timely delivered by the Special Servicer to the Servicer), for the related
Mortgaged Property or REO Property as of the end of the preceding fiscal
year. The Servicer shall use its best reasonable efforts (but shall not be
required to institute litigation) to obtain said annual operating
statements and rent rolls with respect to each of the Loans, other than
Specially Serviced Loans or REO Loans, which efforts shall include sending
a letter to the related Borrower each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls until
they are received, to the extent such action is consistent with applicable
law and the terms of the Loans.
(ii) The Servicer shall maintain an Operating Statement Analysis
Report for each Mortgaged Property (other than any such Mortgaged Property
which is REO Property or constitutes security for a Specially Serviced
Loan) that shall be updated by the Servicer and delivered to the
Certificate Administrator within 30 days after receipt by the Servicer of
updated operating statements for such Mortgaged Property, provided, that
the Servicer shall not be required to update the Operating Statement
Analysis Reports more often than quarterly.
The Special Servicer will be required pursuant to Section 3.12(g) to
deliver to the Servicer the information required pursuant to this Section
3.12(d) with respect to Specially Serviced Loans and REO Loans on or before
April 30 of each year, commencing on April 30, 2000, and within ten days after
its receipt of any operating statement for any related Mortgaged Property or REO
Property.
(e) No later than 1:00 p.m. New York City time on each Servicer
Remittance Date, the Servicer shall prepare and deliver to the Trustee and the
Certificate Administrator, the Rating Agencies and the Special Servicer, a
Servicer Watch List of all Loans that the Servicer has determined are in
jeopardy of becoming a Specially Serviced Loan. For this purpose, the following
Loans shall be deemed to be Loans that are in jeopardy of becoming Specially
Serviced Loans: (i) Loans having a current Debt Service Coverage Ratio that is
80% or less of the Underwritten Debt Service Coverage Ratio or having a Debt
Service Coverage Ratio that is less than 1.00x or .90x (for Loans secured by
Mortgaged Properties that are or include one or more commercial cooperatives,
resort cooperatives or residential cooperative apartment buildings with five or
more cooperative units or a condominium unit that comprises the residential and
commercial buildings), (ii) Loans as to which any required inspection of the
related Mortgaged Property conducted by the Servicer indicates a problem that
the Servicer determines can reasonably be expected to materially adversely
affect the cash flow generated by such Mortgaged Property, (iii) Loans which
have come to the Servicer's attention in the performance of its duties under
this Agreement, that (A) any tenant occupying 25% or more of the space in the
related Mortgaged Property has vacated (without being replaced by a comparable
tenant and lease) or been the subject of bankruptcy or similar proceedings or
(B) relate to a Borrower or an Affiliate that is the subject of a bankruptcy or
similar proceeding, (iv) Loans that are at least 30 days delinquent in payment,
and (v) Loans that are within 60 days of maturity.
The Special Servicer shall report to the Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Loans, the
Servicer and the Special Servicer shall provide to each other and to the Trustee
and the Certificate Administrator written notice of any event that comes to
their knowledge with respect to a Loan or REO Property that the Servicer or the
Special Servicer, respectively, determines, in accordance with Servicing
Standard, would have a material adverse effect on such Loan or REO Property,
which notice shall include an explanation as to the reason for such material
adverse effect.
(f) By 4:00 p.m., New York City time, on the first Business Day
after each Determination Date, the Special Servicer shall deliver, or cause to
be delivered, to the Servicer and, upon the request of the Certificate
Administrator, the Trustee, the Depositor or any Rating Agency, to any such
requesting party, the following reports with respect to the Specially Serviced
Loans (and, if applicable, the related REO Properties), providing the required
information as of such Determination Date: (i) a Delinquent Loan Status Report;
(ii) an Historical Loss Estimate Report; (iii) an Historical Loan Modification
Report; (iv) an REO Status Report; and (v) Comparative Financial Status Reports
with respect to all Specially Serviced Loans. Such reports shall be presented in
writing and on a computer readable medium in a format reasonably acceptable to
the Servicer and the Special Servicer.
(g) The Special Servicer shall deliver or cause to be delivered to
the Servicer and, upon the request of the Certificate Administrator, the
Trustee, the Depositor or any Rating Agency, to any such requesting party, the
following materials, in each case to the extent that such materials or the
information on which they are based have been received by the Special Servicer:
(i) Annually, on or before April 30 of each year, commencing in
April 2000, with respect to each Specially Serviced Loan and REO Loan, an
Operating Statement Analysis Report and NOI Adjustment Worksheet, both in
written form and in electronic format reasonably acceptable to the
Servicer, the Special Servicer and the Certificate Administrator for the
related Mortgaged Property or REO Property as of the end of the preceding
calendar year (but only to the extent the Special Servicer has received
such information from the Servicer at the time of the servicing transfer
pursuant to Section 3.21 necessary to prepare the related Operating
Statement Analysis and NOI Adjustment Worksheet on a prospective basis),
together with copies of the operating statements and rent rolls for the
related Mortgaged Property or REO Property as of the end of the preceding
calendar year. The Special Servicer shall use its best reasonable efforts
(but shall not be required to institute litigation) to obtain said annual
operating statements and rent rolls with respect to each Mortgaged
Property constituting security for a Specially Serviced Loan and each REO
Property, which efforts shall include sending a letter to the related
Borrower or other appropriate party each quarter (followed up with
telephone calls) requesting such annual operating statements and rent
rolls until they are received.
(ii) The Special Servicer shall maintain an Operating Statement
Analysis Report, both in written form and in electronic format reasonably
acceptable to the Servicer, the Special Servicer and the Certificate
Administrator, for each Mortgaged Property which constitutes security for
a Specially Serviced Loan or is a REO Property that shall be updated by
the Special Servicer and delivered to the Servicer within 10 days after
receipt by the Special Servicer of updated operating statements for each
such Mortgaged Property, provided, that the Special Servicer shall not be
required to update the Operating Statement Analysis Reports more often
than quarterly.
(h) The Servicer and the Special Servicer hereby agree to deliver to
each Rating Agency any information such Rating Agency may reasonably request.
The Certificate Administrator shall be entitled to rely conclusively on and
shall not be responsible for the content or accuracy of any information provided
to it by the Servicer or the Special Servicer pursuant to this Agreement.
(i) On each Determination Date, the Servicer shall also deliver or
cause to be delivered to the Certificate Administrator and the Rating Agencies a
report stating, with respect to each Credit Tenant and the Guarantor, as of a
date no earlier than three Business Days prior to such Determination Date: (i)
all publicly available ratings for each Credit Tenant and the Guarantor as of
the Closing Date and as of the date of such report, (ii) all publicly available
ratings for such Credit Tenant or Guarantor included in the report prepared
pursuant to this Section 3.12(i) for the immediately preceding Determination
Date and (iii) whether such Credit Tenant or Guarantor has been placed on credit
watch. To the extent that the information required to be furnished to the
Servicer is based on information required to be provided by the Mortgagor, the
Servicer's obligation to furnish such information will be contingent upon its
receipt of such information from the Mortgagor, provided, however, the Servicer
shall use commercially reasonable efforts, consistent with the Servicing
Standard, to obtain such information from the Mortgagors. The Servicer shall be
entitled to rely on information supplied by the Mortgagor without independent
verification, and the Certificate Administrator shall be entitled to rely on
information supplied by the Servicer without independent verification. The
Servicer shall be entitled to attach any reasonable disclaimer with respect to
information provided by third parties or any assumptions required to be made in
such report.
Section 3.13 Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person") each
shall deliver to the Trustee, the Certificate Administrator, the Depositor and
the Rating Agencies, on or before April 15 of each year, beginning with April
15, 2000, an Officer's Certificate stating, as to each signatory thereof, (i)
that a review of the servicing operations of the reporting person during the
preceding calendar year (or such shorter period from the Closing Date to the end
of the related calendar year) and of its performance under this Agreement has
been made under such officer's supervision, (ii) that, to the best of such
officer's knowledge, based on such review, the reporting person has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year (or such shorter period), or, if there has been a material default in
the fulfillment of any such obligation, specifying each such default known to
such officer, the nature and status thereof and what action it proposes to take
with respect thereto, (iii) that, to the best of such officer's knowledge, each
related sub-servicer has fulfilled its obligations under its sub-servicing
agreement in all material respects, or, if there has been a material default in
the fulfillment of such obligations, specifying each such default known to such
officer and the nature and status thereof, and (iv) whether it has received any
notice regarding qualification, or challenging the status, of any REMIC created
hereunder as a REMIC from the IRS or any other governmental agency or body. The
Trustee shall deliver such Officer's Certificate, upon request, to any
Certificateholder.
Section 3.14 Reports by Independent Public Accountants.
On or before April 15 of each year, beginning with April 15, 2000,
the Servicer and the Special Servicer (the "reporting person"), each at the
reporting person's expense, shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to the
Certificate Administrator, the Trustee, the Depositor and the Rating Agencies,
to the effect that such firm has examined the servicing operations of the
reporting person for the previous calendar year (or portions thereof) and that,
on the basis of such examination conducted substantially in compliance with the
Uniform Single Attestation Program ("USAP") for Mortgage Bankers or the Audit
Program for Mortgages (the "Audit Program") serviced for FHLMC, such firm
confirms that the Servicer or the Special Servicer, as the case may be, complied
with the minimum servicing standards identified in USAP or the Audit Program, in
all material respects, except for such significant exceptions or errors in
records that, in the opinion of such firm, the USAP or the Audit Program
requires it to report.
In rendering such statement, such firm may rely, as to matters
relating to direct servicing of mortgage loans by Sub-Servicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Audit Program for Mortgage Bankers (rendered within one year of
such statement) of independent public accountants with respect to the related
Sub-Servicer. Each reporting person shall obtain from the related accountants,
or shall prepare, an electronic version of each Accountant's Statement and
provide such electronic version to the Certificate Administrator for filing in
accordance with the procedures set forth in Section 3.27 hereof. With respect to
any electronic version of an Accountant's Statement prepared by the reporting
person, the reporting person shall receive written confirmation from the related
accountants that such electronic version is a conformed copy of the original
Accountant's Statement.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide
reasonable access during its normal business hours at each of its principal
servicing offices to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Certificate Administrator, the Custodian, the Depositor, each Rating Agency, to
the Servicer or to the Special Servicer, as applicable, and to the OTS, the
FDIC, the Federal Reserve Board and the supervisory agents and examiners of such
boards and such corporations, and any other federal or state banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Loans and the Trust
Fund within its control which may be required by this Agreement or by applicable
law.
Such access shall be afforded without charge (except that the
Servicer and the Special Servicer may charge a reasonable fee for copies and
out-of-pocket costs to parties other than the Rating Agencies) but only upon
reasonable prior written request and during normal business hours at the offices
of the Servicer or the Special Servicer, as the case may be, designated by it.
Nothing in this Section 3.15 shall detract from the obligation of the Servicer
and the Special Servicer to observe any applicable law prohibiting disclosure of
information with respect to the Mortgagors, and the failure of the Servicer or
the Special Servicer to provide access as provided in this Section 3.15 as a
result of such obligation shall not constitute a breach of this Section 3.15.
Nothing herein shall be deemed to require the Servicer or Special Servicer to
confirm, represent or warrant the accuracy of any other Persons' information or
report, included in any communication from the Servicer, the Special Servicer or
Mortgagor. Notwithstanding the above, the Servicer and Special Servicer shall
not have any liability to the Depositor, the Trustee, the Certificate
Administrator, any Certificateholder, any Certificate Owner, the Initial
Purchaser, either Underwriter, any Rating Agency, the L'Enfant Other Servicer or
any Person to whom it delivers information pursuant to and in accordance with
this Section 3.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. The Servicer and the Special Servicer may each deny any of the
foregoing persons access to confidential information or any intellectual
property which the Servicer or the Special Servicer is restricted by license or
contract from disclosing. Notwithstanding the foregoing, the Servicer and the
Special Servicer shall maintain separate from such confidential information and
intellectual property, all documentation regarding the Loans that is not
confidential.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee (or its nominee) on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property prior to the close of the third calendar year beginning
after the year in which the Trust Fund acquires ownership of such REO Property
for purposes of Section 860G(a)(8) of the Code, unless the Special Servicer
either (i) is granted an extension of time (an "REO Extension") by the Internal
Revenue Service to sell such REO Property or (ii) obtains for the Trustee and
the Servicer an Opinion of Counsel (the cost of which shall be paid as a
Servicing Advance), addressed to the Trustee and the Servicer, to the effect
that the holding by the Trust Fund of such REO Property after such period will
not result in the imposition of taxes on "prohibited transactions" of the Trust
Fund or either REMIC created hereunder as defined in Section 860F of the Code or
cause either REMIC created hereunder to fail to qualify as a REMIC for federal
or applicable state tax purposes at any time that any Uncertificated Lower-Tier
Interests or Certificates are outstanding. If the Special Servicer is granted
the REO Extension or obtains the Opinion of Counsel contemplated by clause (ii)
above, the Special Servicer shall sell such REO Property within such period as
is permitted by such REO Extension or such Opinion of Counsel. Any expense
incurred by the Special Servicer in connection with its being granted the REO
Extension or its obtaining the Opinion of Counsel contemplated by clause (ii)
above shall be an expense of the Trust Fund payable out of the Collection
Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each REO Property. The
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, within one Business Day after
receipt, all REO Revenues, Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of an REO Property. Funds in the REO Account may be
invested only in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall give notice to the Certificate Administrator and the
Servicer of the location of the REO Account when first established and of the
new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On each Determination Date, the
Special Servicer shall withdraw from the REO Account and deposit into the
Collection Account the aggregate of all amounts received in respect of each REO
Property during the most recently ended Due Period, net of any withdrawals made
out of such amounts pursuant to the preceding sentence; provided, however, that
the Special Servicer may retain in such REO Account, in accordance with the
Servicing Standard, such portion of such balance as may be necessary to maintain
a reasonable reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, on each Determination Date, the Special Servicer shall provide the
Servicer with a written accounting of amounts deposited in the Collection
Account on such date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment) and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all Insurance Policy premiums due and payable in
respect of such REO Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such
REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i)
through (iv) above with respect to such REO Property, the Servicer shall advance
from its own funds, as a Servicing Advance, such amount as is necessary for such
purposes unless (as evidenced by an Officer's Certificate delivered to the
Trustee and the Depositor) if such advances would, if made, constitute
Nonrecoverable Servicing Advances. The Special Servicer shall give the Servicer
and the Trustee not less than five Business Days' notice, together with all
information reasonably requested by the Servicer (upon which the Servicer may
conclusively rely) to the extent in the possession of the Special Servicer or
readily obtainable by the Special Servicer before the date on which the Servicer
is requested to make any Servicing Advance with respect to an REO Property;
provided, however, that only two Business Days' notice shall be required in
respect of Servicing Advances required to be made on an urgent or emergency
basis (which may include, without limitation, Servicing Advances required to
make tax or insurance payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the repair or maintenance thereof or the completion of a
building or other improvement thereon, and then only if more than 10% of
the construction of such building or other improvement was completed
before default on the related Loan became imminent, all within the meaning
of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer as a Servicing Advance)
to the effect that such action will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel. Except as limited above in this Section 3.17 and by Section 3.17(c),
the Special Servicer shall be permitted to cause the Trust Fund to earn "net
income from foreclosure property," subject to the Servicing Standard.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the Acquisition Date thereof, provided that:
(i) the terms and conditions of any such contract may not
be inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered
to require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
Section 3.18 Sale of Defaulted Loans and REO Properties.
(a) Each of the Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a Defaulted Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Section 2.03(b) and
Section 9.01.
(b) If any Loan becomes a Defaulted Loan and the Special Servicer
has determined in good faith that such Defaulted Loan will become subject to
foreclosure proceedings, the Special Servicer shall promptly so notify in
writing the Trustee and the Servicer. The Special Servicer (or the Servicer, if
the Special Servicer does not exercise its option, or the Directing
Certificateholder, if the Servicer does not exercise its option) may at its
option purchase such Defaulted Loan from the Trust Fund, at a price equal to the
Purchase Price. The Purchase Price for any Defaulted Loan purchased hereunder
shall be deposited into the Collection Account. Upon receipt by the Trustee of
an Officer's Certificate from the Special Servicer to the effect that such
deposit has been made, the Trustee shall notify the Servicer. The Servicer shall
then submit to the Custodian a Request for Release of the related Mortgage File
and the Custodian shall release such Mortgage File to the Special Servicer, the
Servicer or the Directing Certificateholder, as the case may be, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty as shall be necessary to vest in
the Special Servicer, the Servicer or the Directing Certificateholder (in that
order), as the case may be, ownership of such Defaulted Loan.
(c) The Special Servicer may offer to sell any Defaulted Loan not
otherwise purchased by the Special Servicer, the Servicer or the Directing
Certificateholder pursuant to subsection (b) above, if and when the Special
Servicer determines, consistent with the Servicing Standard, that such a sale
would produce a greater recovery on a present value basis than would liquidation
of the related Mortgaged Property. Such offering shall be made in a commercially
reasonable manner for a period of not less than 20 days or more than 90 days.
The Special Servicer shall accept the highest cash bid received from any Person
for such Defaulted Loan in an amount at least equal to the Purchase Price
therefor; provided, however, that in the absence of any such bid, the Special
Servicer shall accept the highest cash bid received from any Person that is
determined by the Special Servicer to be a fair price for such Defaulted Loan.
In the absence of any bid determined as provided below to be fair, the Special
Servicer shall proceed with respect to such Defaulted Loan in accordance with
Section 3.09.
The Special Servicer shall use reasonable efforts to solicit bids
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). Such
solicitation shall be made in a commercially reasonable manner for a period of
not less than 90 days or more than 270 days. The Special Servicer shall accept
the highest cash bid received from any Person for such REO Property in an amount
at least equal to the Purchase Price therefor; provided, however, that in the
absence of any such bid, the Special Servicer shall accept the highest cash bid
received from any Person that is determined by the Special Servicer to be a fair
price for such REO Property. If the Special Servicer reasonably believes that it
will be unable to realize a fair price for any REO Property within the time
constraints imposed by Section 3.16(a), then the Special Servicer shall dispose
of such REO Property upon such terms and conditions as the Special Servicer
shall deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest outstanding
cash bid, regardless of from whom received. If the Special Servicer determines
with respect to any REO Property that the offers being made with respect thereto
are not in the best interests of the Certificateholders and that the end of the
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 Standard, to
sell any REO Property prior to three years prior to the Rated Final Distribution
Date.
The Special Servicer shall give the Trustee and the Servicer not
less than three Business Days' prior written notice of its intention to sell any
Defaulted Loan or REO Property. No Interested Person shall be obligated to
submit a bid to purchase any Defaulted Loan or REO Property, and notwithstanding
anything to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may bid for or purchase any Defaulted Loan
or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Loan or REO Property, as the case may be, for purposes of Section 3.18(c), shall
be determined by the Special Servicer, if the highest bidder is a Person other
than the Special Servicer or an Affiliate thereof, and by the Trustee, if the
highest bidder is the Special Servicer or an Affiliate thereof. In determining
whether any bid received from the Special Servicer or an Affiliate thereof
represents a fair price for any Defaulted Loan or any REO Property, the Special
Servicer and the Trustee may conclusively rely on the opinion of an Appraiser or
other expert in real estate matters retained at the expense of the Trust Fund by
(i) the Trustee, if the highest bidder is the Special Servicer or an Affiliate
thereof or (ii) the Special Servicer, in any other case. In determining whether
any bid constitutes a fair price for any Defaulted Loan or any REO Property,
such Appraiser or other expert in real estate matters shall be instructed to
take into account, as applicable, among other factors, the period and amount of
any delinquency on the affected Defaulted Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a). The Purchase Price for any Defaulted Loan or REO
Property shall in all cases be deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Loan or REO Property, and the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Loan or any REO Property shall be final and
without recourse to the Trustee or the Trust Fund, except, in the case of the
Trust Fund, as shall be customary in deeds of real property, and if such sale is
consummated in accordance with the terms of this Agreement, neither the Special
Servicer nor the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
Section 3.19 Additional Obligations of the Servicer and
Special Servicer; Inspections; Appraisals.
(a) The Servicer (or, with respect to each Specially Serviced Loan
and REO Property and each Loan described in Section 3.19(d) below, the Special
Servicer) shall physically inspect or cause to be physically inspected (at its
own expense) each Mortgaged Property at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property (A) with a Stated Principal Balance equal to or greater than
$2,500,000 or which constitutes at least 2.0% of the then-current aggregate
principal balance of the Loans at least once every 12 months and (B) with a
Stated Principal Balance of less than $2,500,000 and which does not constitute
at least 2.0% of the then-current aggregate principal balance of the Loans, at
least every 24 months, in each case commencing in December 1999 (or at such
lesser frequency as each Rating Agency shall have confirmed in writing to the
Servicer, will not result a downgrade, qualification or withdrawal of the
then-current ratings assigned to any Class of the Certificates) and (C) if the
Loan (i) becomes a Specially Serviced Loan, (ii) has a Debt Service Coverage
Ratio of less than 1.0x or (iii) is delinquent for 60 days as soon as
practicable and thereafter at least once every 12 months for so long as such
condition exists. The Servicer or Special Servicer, as applicable, shall send
(i) to DCR, within 20 days of completion, each inspection report and (ii) to
Fitch and Moody's within 20 days of completion, each inspection report for
Significant Loans.
(b) Notwithstanding the provisions of Section 3.19(a), with respect
to the Credit Lease Loans, the Servicer (or, if such Credit Lease Loan is a
Specially Serviced Loan, the Special Servicer) shall physically inspect or cause
to be physically inspected (at its own expense) each Mortgaged Property at least
once (i) every 36 months, if the related Credit Tenant or Guarantor has a
published rating of not less than "BBB," (ii) every 24 months if (A) the related
Credit Tenant or Guarantor has a published rating between "BB+" and "BB" or (B)
no published rating is publicly available for the related Credit Tenant and
(iii) every 12 months if (A) the related Credit Tenant or Guarantor has a
published rating of less than "BB" or (B) no published rating is publicly
available for the related Credit Tenant or Guarantor and such Credit Lease Loan
represents 2% or more of the then-current aggregate principal balance of the
Loans. In the event the published rating for any Credit Tenant or Guarantor is
downgraded by any Rating Agency by one or more rating increment (i.e., "AA" to
"A" or "BBB" to "B") and no inspection has been performed due to a ratings
downgrade in the preceding 12 months for the related Mortgaged Property, then in
each such instance, the Servicer shall cause all Mortgaged Properties leased to
such Credit Tenant to be inspected as soon as reasonably practicable.
(c) With respect to each Loan (other than the L'Enfant
Participation) that allows the Special Servicer (on behalf of the Trust Fund) to
terminate, or cause the related Borrower to terminate, the related Manager upon
the occurrence of certain events specified in such Loan, the Special Servicer
shall enforce the Trustee's rights with respect to the Manager under the related
Loan and Management Agreement, provided, that, if such right accrues under the
related Loan or Management Agreement only because of the occurrence of the
related Anticipated Repayment Date, if any, the Special Servicer may in its sole
discretion, in accordance with the Servicing Standard, waive such right with
respect to such date. If the Special Servicer is entitled to terminate the
Manager, the Special Servicer shall promptly give notice to the Directing
Certificateholder and each Rating Agency. In accordance with the Servicing
Standard, the Special Servicer shall cause the Borrower to terminate the
Manager, and to recommend a Successor Manager (meeting the requirements set
forth below) only if the Special Servicer determines in its reasonable
discretion that such termination is not likely to result in successful
litigation against the Trust Fund by such Manager or the related Borrower, or
create a defense to the enforcement of remedies under such Loan.
The Special Servicer shall effect such termination only if the
Special Servicer has (i) in the case of any Specially Serviced Loan that is a
Significant Loan, received a written confirmation from each of Fitch and Moody's
and (ii) in the case of any Specially Serviced Loan that represents 5% or more
of the then-current aggregate principal balance of the Loans, received a written
confirmation from each of the Rating Agencies, that the appointment of such
Successor Manager would not cause such Rating Agency to withdraw, downgrade or
qualify any of the then-current ratings on the Certificates. If a Manager is
otherwise terminated or resigns under the related Loan or Management Agreement
and the related Borrower does not appoint a Successor Manager, the Special
Servicer shall use its best efforts to retain a Successor Manager (or the
recommended Successor Manager, if any) on terms substantially similar to the
Management Agreement or, failing that, on terms as favorable to the Trust Fund
as can reasonably be obtained by the Special Servicer. For the purposes of this
paragraph, a "Successor Manager" shall be a professional management corporation
or business entity reasonably acceptable to the Special Servicer which (i)
manages, and is experienced in managing, other comparable commercial properties,
(ii) will not result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates by each Rating Agency, as
confirmed by such Rating Agency in writing (if required pursuant to the first
sentence of this paragraph), and (iii) otherwise satisfies any criteria set
forth in the Mortgage and related documents.
(d) The Special Servicer shall be required to have received any
Appraisal required in connection with an Appraisal Reduction Event or perform an
internal valuation within 60 days after the occurrence of such Appraisal
Reduction Event (or the date of such Appraisal Reduction Event if the time
period between (i) the occurrence of the event that, with the passage of time,
would become such Appraisal Reduction Event and (ii) such Appraisal Reduction
Event exceeds 60 days). Upon receipt, the Special Servicer shall send a copy of
such Appraisal or internal valuation to the Certificate Owners of the
Controlling Class; provided, however, that as to each such Appraisal or internal
valuation, if beneficial ownership of the Controlling Class resides in more than
one Certificate Owner, the Special Servicer shall be responsible only for the
expense of providing the first such copy thereof and shall be entitled to
reimbursement from the Trust Fund for the expense of any additional copies so
provided. If neither a required Appraisal is received, nor an internal valuation
completed, by such date, or if, with respect to any Loan with a Stated Principal
Balance of $2,000,000 or less, the Special Servicer has elected not to obtain an
Appraisal or perform an internal valuation, the Appraisal Reduction for such
Loan shall be conclusively established to be 35% of the Stated Principal Balance
of such Loan as of the date of the related Appraisal Reduction Event. On the
first Determination Date occurring on or after the delivery of such Appraisal or
the completion of such internal valuation, and on each Determination Date
thereafter, the Special Servicer shall calculate and report to the Servicer, and
the Servicer shall report to the Certificate Administrator, the Appraisal
Reduction taking into account such Appraisal or internal valuation. The Servicer
shall verify the accuracy of the mathematical computation of the Appraisal
Reduction by the Special Servicer and that the amounts used therein are
consistent with the Servicer's records. Subject to this preceding sentence, the
Servicer may conclusively rely on any report by the Special Servicer of an
Appraisal Reduction.
(e) With respect to each Loan as to which an Appraisal Reduction
Event has occurred (unless such Loan has become a Corrected Loan and has
remained current for twelve consecutive Monthly Payments for such purposes,
taking into account any amendment or modification of such Loan) and with respect
to which no other Appraisal Reduction Event has occurred and is continuing, the
Special Servicer shall, within 30 days of each annual anniversary of such
Appraisal Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), or with respect to any Loan with an outstanding principal balance
less than $2,000,000, perform an internal valuation or obtain an Appraisal
(which may be an update of a prior Appraisal), the cost of which shall be paid
by the Servicer as a Servicing Advance. Upon receipt, the Special Servicer shall
send a copy of such Appraisal to the Certificate Owners of the Controlling
Class; provided, however, that as to each such Appraisal, if beneficial
ownership of the Controlling Class resides in more than one Certificate Owner,
the Special Servicer shall be responsible only for the expense of providing the
first such copy thereof and shall be entitled to reimbursement from the Trust
Fund for the expense of any additional copies so provided. Such Appraisal or
internal valuation or percentage calculation of the Appraisal Reduction
described in the preceding paragraph, as the case may be, shall be used to
determine the amount of the Appraisal Reduction with respect to such Loan for
each Determination Date until the next Appraisal is required pursuant to this
Section 3.19(e), and such redetermined Appraisal Reduction shall replace the
prior Appraisal Reduction with respect to such Loan. Notwithstanding the
foregoing, the Special Servicer will not be required to obtain an Appraisal or
perform an internal valuation, as the case may be, with respect to a Loan which
is the subject of an Appraisal Reduction Event if the Special Servicer has
obtained an Appraisal with respect to the related Mortgaged Property within the
12-month period immediately prior to the occurrence of such Appraisal Reduction
Event. Instead, the Special Servicer may use such prior Appraisal in calculating
any Appraisal Reduction with respect to such Loan.
With respect to each Loan as to which an Appraisal Reduction Event
has occurred and which has become a Corrected Loan and has remained current for
twelve consecutive Monthly Payments, taking into account any amendment or
modification of such Loan, and with respect to which no other Appraisal
Reduction Event has occurred and is continuing, the Special Servicer may within
30 days after the date of such twelfth Monthly Payment, order an Appraisal
(which may be an update of a prior Appraisal), or with respect to any Loan with
an outstanding principal balance less than $2,000,000, perform an internal
valuation or obtain an Appraisal (which may be an update of a prior Appraisal),
the cost of which shall be paid by the Servicer as a Servicing Advance. Based
upon such Appraisal or internal valuation, the Special Servicer shall
redetermine and report to the Trustee and the Servicer the amount of the
Appraisal Reduction with respect to such Loan and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such Loan.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Subject to the provisions of this Section 3.20, the Servicer and
the Special Servicer may, on behalf of the Trustee, agree to any modification,
waiver or amendment of any term of any Loan without the consent of the Trustee
or any Certificateholder.
(i) For any Loan other than a Specially Serviced Loan and the
L'Enfant Participation and subject to the rights of the Special Servicer
set forth below, the Servicer shall be responsible subject to the other
requirements of this Agreement with respect thereto, for any request by a
Borrower for the consent of the mortgagee or a modification, waiver or
amendment of any term thereof, provided that such consent or modification,
waiver or amendment would not affect the amount or timing of any of the
payment terms of such Loan, result in the release of the related Borrower
from any material term thereunder, waive any rights thereunder with
respect to any guarantor thereof or relate to the release or substitution
of any material collateral for such Loan. To the extent consistent with
the foregoing, the Servicer shall be responsible for the following:
(A) Approving any waiver affecting the timing of receipt of
financial statements from any Borrower provided that such financial
statements are delivered no less than quarterly and within 60 days
of the end of the calendar quarter to which such financial
statements relate;
(B) Approving routine leasing activity with respect to leases
for less than the lesser of (a) 30,000 square feet and (b) 20% of
the related Mortgaged Property;
(C) Approving annual budgets for the related Mortgaged
Property, provided that no such budget (1) relates to a fiscal year
in which an Anticipated Repayment Date occurs, (2) provides for the
payment of operating expenses in an amount equal to more than 110%
of the amounts budgeted therefor for the prior year or (3) provides
for the payment of any material expenses to any affiliate of the
Borrower (other than the payment of a management fee to any property
manager if such management fee is no more than the management fee in
effect on the Cut-off Date);
(D) Waiving any provision of a Loan requiring the receipt of a
rating confirmation if such Loan is not a Significant Loan and the
related provision of such Loan does not relate to a "due-on-sale" or
"due-on-encumbrance" clause (which shall be subject to the terms of
Section 3.08 hereof); and
(E) Subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Loan requiring a specified
number of days notice prior to a Principal Prepayment.
(ii) Notwithstanding the foregoing, the Servicer shall
not waive, modify or amend the provisions of any Loan unless such
waiver, modification or amendment would not constitute a
"significant modification" under Treasury Regulations
Section 1.860G-2(b).
(iii) The Special Servicer shall be responsible for any request
by a Borrower for the consent of the mortgagee and any modification,
waiver or amendment of any term of any Loan for which the Servicer is not
responsible, as provided above, or if such consent, request, modification,
waiver or amendment relates to a Loan that is on the most recent Servicer
Watch List, has a Debt Service Coverage Ratio (based on the most recently
received financial statements and calculated on a trailing twelve month
basis) less than the greater of 1.1x or 20% less than the Debt Service
Coverage Ratio as of the Cut-off Date (unless such Loan is a credit lease
loan) or with respect to which an event of default has occurred in the
preceding 12 months.
(b) All modifications, waivers or amendments of any Loan shall be
(i) in writing and (ii) effected in accordance with the Servicing Standard.
(c) Neither the Servicer nor the Special Servicer, on behalf of the
Trustee, shall agree or consent to any modification, waiver or amendment of any
term of any Loan that is not a Specially Serviced Loan if such modification,
waiver or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Penalty Interest and other
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(e), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Appraiser delivered at
the expense of the related Mortgagor and upon which the Servicer and the
Special Servicer, as applicable, may conclusively rely) of the property to
be released; or
(iv) in the judgment of the Special Servicer, otherwise
materially impair the security for such Loan or reduce the likelihood of
timely payment of amounts due thereon.
(d) Notwithstanding Sections 3.20(b)(i), 3.20(c)(i) and 3.20(c)(ii),
but subject to Section 3.20(e), the Special Servicer may (i) reduce the amounts
owing under any Specially Serviced Loan by forgiving principal, accrued interest
and/or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce the
amount of the Monthly Payment on any Specially Serviced Loan, including by way
of a reduction in the related Mortgage Rate, (iii) forbear in the enforcement of
any right granted under any Note or Mortgage relating to a Specially Serviced
Loan, (iv) waive Excess Interest if such waiver conforms to the Servicing
Standard and/or (v) accept a Principal Prepayment during any Lockout Period;
provided that the related Borrower is in default with respect to the Specially
Serviced Loan or, in the judgment of the Special Servicer, such default is
reasonably foreseeable.
(e) Neither the Servicer nor the Special Servicer shall consent to,
make or permit (i) any modification with respect to any Loan that would change
the Mortgage Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
Maturity Date of such Loan unless both (A) the related Mortgagor is in default
with respect to the Loan or, in the judgment of the Special Servicer, such
default is reasonably foreseeable and (B) in the sole good faith judgment of the
Special Servicer and in accordance with the Servicing Standard, such
modification would increase the recovery on the Loan to Certificateholders on a
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate) or (ii) any modification, waiver or amendment of any term of any Loan that
would either (A) absent a default with respect to the Loan (or absent the
Special Servicer's determination that a default is reasonably foreseeable),
constitute a "significant modification" under Treasury Regulation Section
1.860G-2(b) or (B) cause either REMIC created hereunder to fail to qualify as a
REMIC under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions.
Notwithstanding the foregoing, the Special Servicer shall not extend
the date on which any Balloon Payment is scheduled to be due unless (x) the
Special Servicer has obtained an Appraisal of the related Mortgaged Property
(or, with respect to any related Loan with an outstanding principal balance less
than $2,000,000, has performed an internal valuation) in connection with such
extension, which Appraisal or internal valuation supports the determination of
the Special Servicer contemplated by clause (i)(B) of the immediately preceding
paragraph or (y) the related Loan has not been in default at any time during the
twelve-month period preceding the Maturity Date of such Loan, in which case the
Special Servicer, on one occasion only, may extend the date on which such
Balloon Payment is due to a date not more than 60 days after such Maturity Date.
The determination of the Special Servicer contemplated by clause
(i)(B) of the first paragraph of this Section 3.20(e) shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee and the Servicer
and describing in reasonable detail the basis for the Special Servicer's
determination and the considerations of the Special Servicer forming the basis
of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include an Appraisal of the related Loan or Mortgaged Property, the cost of
which Appraisal shall be advanced by the Servicer as a Servicing Advance).
(f) In no event shall the Special Servicer (i) extend the Maturity
Date of a Loan for more than three one-year extensions or beyond a date that is
three years prior to the Rated Final Distribution Date; (ii) extend the Maturity
Date of any Loan at an interest rate less than the lower of (a) the interest
rate in effect prior to such extension or (b) the then prevailing interest rate
for comparable loans, as determined by the Special Servicer by reference to
available indices for commercial mortgage lending; (iii) if the Loan is secured
by a ground lease, extend the Maturity Date of such Loan beyond a date which is
10 years prior to the expiration of the term of such ground lease; (iv) reduce
the Mortgage Rate to a rate below the lesser of (x) 7.64% per annum and (y) the
then prevailing interest rate for comparable loans, as determined by the Special
Servicer by reference to available indices for commercial mortgage lending; or
(v) defer interest due on any Loan in excess of 5% of the Stated Principal
Balance of such Loan.
(g) Neither the Servicer nor the Special Servicer may permit or
modify a Loan to permit a voluntary Principal Prepayment of a Loan (other than a
Specially Serviced Loan) on any day other than its Due Date, (i) unless the
Servicer or Special Servicer also collects interest thereon through the Due Date
following the date of such Principal Prepayment, (ii) unless otherwise permitted
under the related Loan Documents or (iii) unless such Principal Prepayment would
not result in a Prepayment Interest Shortfall.
(h) The Servicer and the Special Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to it (i) as additional servicing compensation, a reasonable or
customary fee for the additional services performed in connection with such
request, and (ii) any related costs and expenses incurred by it. In no event
shall the Special Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer shall notify the Servicer, any related
Sub-Servicers, the Certificate Administrator and the Trustee, in writing, of any
modification, waiver or amendment of any term of any Loan (including fees
charged the Mortgagor) and the date thereof, and shall deliver to the Custodian
(with a copy to the Servicer) for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver or
amendment, promptly (and in any event within ten Business Days) following the
execution thereof. The Servicer and Special Servicer shall notify the Rating
Agencies of any modification, waiver or amendment of any term of any Loan.
Copies of each agreement whereby any such modification, waiver or amendment of
any term of any Loan is effected shall be made available for review upon prior
request during normal business hours at the offices of the Servicer or Special
Servicer, as applicable, pursuant to Section 3.15 hereof.
(j) With respect to each Borrower that has been established as a
"bankruptcy-remote entity," the Servicer shall not consent to (x) the amendment
by such Borrower of its organizational documents or (y) any action that would
violate any covenant of such Borrower relating to its status as a separate or
bankruptcy-remote entity. The Servicer shall promptly forward to the Special
Servicer any request received by the Servicer from a Borrower for any such
consent. If a Borrower has been established as a "bankruptcy-remote entity," the
Special Servicer shall not consent to (x) the amendment by such Borrower of its
organizational documents or (y) any action that would violate any covenant of
such Borrower relating to its status as a separate or bankruptcy-remote entity
unless (A) with respect to a Borrower under any Loan, the Special Servicer has
obtained written confirmation from DCR that such amendment or action would not
result in a downgrade or withdrawal of any rating on a Class of Certificates
rated by DCR and (B) with respect to a Borrower under any Significant Loan, the
Special Servicer has obtained written confirmation from Fitch and Moody's that
such amendment or action would not result in a downgrade, withdrawal or
qualification of any rating on a Class of Certificates rated by such Rating
Agency.
Section 3.21 Transfer of Servicing Between Servicer and
Special Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan, the Servicer shall immediately give notice thereof to
the Special Servicer, the Certificate Administrator, the Custodian, the Trustee
and each Rating Agency, shall deliver copies of the related Mortgage File and
Credit File to the Special Servicer and the Directing Certificateholder and
shall use its reasonable best efforts to provide the Special Servicer with all
information, documents and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to such Loan that are in
the possession of the Servicer or available to the Servicer without undue burden
or expense, and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto. The Servicer shall use its
reasonable best efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event and in
any event shall continue to act as Servicer and administrator of such Loan until
the Special Servicer has commenced the servicing of such Loan. The Trustee shall
deliver to the Underwriters, the Initial Purchaser and each Holder of a
Certificate of the Controlling Class, a copy of the notice of such Servicing
Transfer Event provided by the Servicer to the Special Servicer pursuant to this
Section.
Upon determining that a Specially Serviced Loan (other than an REO
Loan) has become a Corrected Loan (provided no additional Servicing Transfer
Event is foreseeable in the reasonable judgment of the Special Servicer) and
that no other Servicing Transfer Event is continuing with respect thereto, the
Special Servicer shall immediately give notice thereof and shall return the
related Mortgage File and Credit File to the Servicer and, upon giving such
notice and returning such Mortgage File and Credit File to the Servicer, the
Special Servicer's obligation to service such Corrected Loan shall terminate and
the obligations of the Servicer to service and administer such Loan shall
re-commence.
(b) In servicing any Specially Serviced Loan, the Special Servicer
will provide to the Custodian, on behalf of the Trustee, originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Servicer), and provide
the Servicer with copies of any additional related Loan information including
correspondence with the related Mortgagor.
(c) No later than one Business Day after each Determination Date, by
4:00 p.m. New York City time, the Special Servicer shall deliver to the Servicer
a statement, both written and in computer readable format reasonably acceptable
to the Servicer and the Special Servicer (upon which the Servicer may
conclusively rely) describing, on a loan-by-loan and property-by-property basis,
(1) the information described in clause (vii) of Section 4.02(a) with respect to
each Specially Serviced Loan and the information described in clause (viii) of
Section 4.02(a) with respect to each REO Property, (2) the amount of all
payments, Insurance and Condemnation Proceeds and Liquidation Proceeds received
with respect to each Specially Serviced Loan during the related Due Period, and
the amount of all REO Revenues, Insurance and Condemnation Proceeds and
Liquidation Proceeds received with respect to each REO Property during the
related Due Period, (3) the amount, purpose and date of all Servicing Advances
made by the Servicer with respect to each Specially Serviced Loan and REO
Property during the related Due Period, (4) the information described in clauses
(v), (vii), (viii), (xi), (xvi) and (xvii) of Section 4.02(a) and (5) such
additional information or data relating to the Specially Serviced Loan and REO
Properties as the Servicer reasonably requests to enable it to perform its
responsibilities under this Agreement which is in the Special Servicer's
possession or is reasonably obtainable by the Special Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Loan and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special Servicer
to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a
Loan, the Special Servicer shall deliver to each Rating Agency, the Servicer and
the Directing Certificateholder a report (the "Asset Status Report") with
respect to such Loan and the related Mortgaged Property. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Loan;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together with
the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action
with respect to such Specially Serviced Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law or the terms of the
applicable Loan Documents. If the Directing Certificateholder disapproves such
Asset Status Report, the Special Servicer shall revise such Asset Status Report
and deliver to the Directing Certificateholder, the Rating Agencies and the
Servicer a new Asset Status Report as soon as practicable, but in no event later
than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(e) until the earlier of (a) the failure of
the Directing Certificateholder to disapprove such revised Asset Status Report
in writing within 10 Business Days of receiving such revised Asset Status
Report; (b) a determination by the Special Servicer as set forth below or (c)
the passage of 60 days from the date of preparation of the first Asset Status
Report. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and it has made a
reasonable effort to contact the Directing Certificateholder and (ii) in any
case, shall determine whether any affirmative disapproval by the Directing
Certificateholder described in this paragraph is not in the best interest of all
the Certificateholders pursuant to the Servicing Standard.
Upon making the determination described in subclause (ii) of the
immediately preceding paragraph (but in no event more than 60 days after the
date of preparation of the Asset Status Report), the Special Servicer shall
notify the Trustee and Certificate Administrator of such rejection and deliver
to the Trustee and Certificate Administrator a proposed notice to
Certificateholders which shall include a copy of the Asset Status Report, in
electronic format, and the Certificate Administrator shall make such notice
available on the Website to all Privileged Persons. If the majority of
Certificateholders, as determined by Voting Rights, fail, within 5 days of the
Certificate Administrator's sending or making available such notice, to reject
such Asset Status Report, the Special Servicer shall implement the same. If the
Asset Status Report is rejected by a majority of the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described above. The
Certificate Administrator shall be entitled to reimbursement from the Trust Fund
for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standard.
No direction of the Directing Certificateholder shall (a) require or
cause the Special Servicer to violate the terms of a Specially Serviced Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each REMIC created hereunder, or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) expose the Servicer, the Special Servicer, the
Depositor, either of the Mortgage Loan Sellers, the Trust Fund, the Certificate
Administrator, the Trustee or their Affiliates, officers, directors, employees
or agents to any claim, suit or liability, or (d) materially expand the scope of
the Special Servicer's or the Servicer's responsibilities under this Agreement.
(f) Upon receiving notice of (i) the filing of a case under any
federal or state bankruptcy, insolvency or similar law or the commencing of any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings with respect to a Loan or the related Mortgagor, (ii) the
existence of a material non-payment default or (iii) the request by a Mortgagor
for the amendment or modification of a Loan, the Servicer shall immediately give
notice thereof, and shall deliver copies of the related Mortgage File and Credit
File to the Special Servicer and shall use its reasonable best efforts to
provide the Special Servicer with all information relating to the Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Servicer shall use
its reasonable best efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event, and upon receiving such
documents and information, the Special Servicer shall use its reasonable best
efforts to cause the related Mortgagor to cure any default and/or remedy any
such event, work out or modify the Loan consistent with the terms of this
Agreement, and/or prepare for such proceedings. Notwithstanding the foregoing,
the occurrence of any of the above-referenced events shall not in and of itself
be considered a Servicing Transfer Event.
Section 3.22 Sub-Servicing Agreements.
(a) The Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of its respective obligations under Articles III and IV hereof; provided
that the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) except with respect to the Primary
Servicing Agreements, provides that if the Servicer or the Special Servicer
shall for any reason no longer act in such capacity hereunder (including,
without limitation, by reason of an Event of Default), the Trustee or its
designee shall thereupon assume or may elect not to assume all of the rights
and, except to the extent they arose prior to the date of assumption,
obligations of the Servicer or Special Servicer, as applicable under such
agreement, or, alternatively, may act in accordance with Section 7.02 hereof
under the circumstances described therein; (iii) provides that the Trustee for
the benefit of the Certificateholders shall be a third-party beneficiary under
such Sub-Servicing Agreement, but that (except to the extent the Trustee or its
designee assumes the obligations of the Servicer or the Special Servicer, as
applicable, thereunder as contemplated by the immediately preceding clause (ii))
none of the Trust Fund, the Trustee, the Certificate Administrator, any
successor Servicer, Special Servicer or any Certificateholder shall have any
duties under such Sub-Servicing Agreement or any liabilities arising therefrom;
(iv) except with respect to the Primary Servicing Agreements, permits any
purchaser of a Loan or the Trustee pursuant to this Agreement to terminate such
Sub-Servicing Agreement with respect to such purchased Loan at its option and
without penalty; (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund; (vi) does
not permit the Sub-Servicer to foreclose on the related Mortgaged Property or
consent to the modification of any Loan without the prior consent of the
Servicer or Special Servicer, as applicable; (vii) provides that the
Sub-Servicer shall act in accordance with the Servicing Standard; (viii)
provides that in the event of an act or failure to act by the Sub-Servicer that
causes the Servicer to be in default of its obligations under this Agreement,
the Sub-Servicer shall be in default of its obligations under such Sub-Servicing
Agreement; and (ix) if such Sub-Servicing Agreement is a Primary Servicing
Agreement, provides that upon termination of the Trust Fund, the owner of the
Loans shall, with respect to those Loans serviced by each Primary Servicer enter
into a servicing agreement with such Primary Servicer in the form of the related
"Prior Servicing Agreement" (as defined in the Primary Servicing Agreement) or
shall pay such Primary Servicer the termination fee that would be payable
thereunder. Any successor Servicer or Special Servicer hereunder, upon becoming
successor Servicer or Special Servicer, as applicable, shall have the right to
be assigned and shall have the right to assume any Sub-Servicing Agreements from
the predecessor Servicer or Special Servicer, as applicable. Upon a termination
of the Servicer pursuant to this Agreement, the successor to the Servicer (other
than the Trustee or its designee) shall automatically succeed to the rights and
obligations of the prior Servicer under the Primary Servicing Agreement, subject
to the termination rights set forth therein, it being understood that any such
succession by the Trustee or its designee shall not be automatic but shall be in
the discretion of the Trustee or such designee.
In addition, each Sub-Servicing Agreement entered into by the
Servicer may provide that the obligations of the Sub-Servicer thereunder shall
terminate with respect to any Loan serviced thereunder at the time such Loan
becomes a Specially Serviced Loan. The Servicer shall deliver to the Trustee
copies of all Sub-Servicing Agreements, and any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. For purposes of this Agreement, the Servicer shall
be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Servicer shall notify the Special Servicer, the
Trustee and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer. The Special Servicer shall notify the Servicer, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Servicer or
the Special Servicer, as applicable, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Servicer would require were it the owner
of the Loans. The Servicer or the Special Servicer, as applicable, shall have
the right to remove a Sub-Servicer retained by it in accordance with the terms
of the related Sub-Servicing Agreement upon the Events of Default and other
termination events specified in the related Sub-Servicing Agreement.
(d) If the Trustee or its designee becomes successor Servicer and
elects to assume the rights and obligations of the Servicer or the Special
Servicer, as applicable, under any Sub-Servicing Agreement, the Servicer or the
Special Servicer, as applicable, at its expense, shall deliver to the assuming
party all documents and records relating to such Sub-Servicing Agreement and the
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement,
each of the Servicer and the Special Servicer represents and warrants that it
shall remain obligated and liable to the Trustee and the Certificateholders for
the performance of its obligations and duties under this Agreement in accordance
with the provisions hereof to the same extent and under the same terms and
conditions as if it alone were servicing and administering the Loans for which
it is responsible, and the Servicer, or the Special Servicer, as applicable,
shall pay the fees of any Sub-Servicer thereunder from its own funds or, with
respect to the Primary Servicers, shall permit each to retain the Primary
Servicing Fees from amounts collected by such Primary Servicer. In no event
shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any limited powers
of attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence or misuse of, any such power of attorney by a
Sub-Servicer, and shall be indemnified by the Sub-Servicer, with respect
thereto.
(g) Except with respect to the Primary Servicing Agreements, each
Sub-Servicing Agreement shall provide that, in the event the Trustee or any
other Person becomes a successor Servicer or the Special Servicer, as
applicable, the Trustee or such successor Servicer or the Special Servicer, as
applicable, shall have the right to terminate such Sub-Servicing Agreement at
its option and without a fee.
(h) Promptly (but in no event later than five Business Days) after
the execution of any Sub-Servicing Agreement, the Servicer shall forward a copy
of such Sub-Servicing Agreement to the Special Servicer, and the Special
Servicer shall forward a copy of such Sub-Servicing Agreement to the Trustee.
The Special Servicer shall comply with the terms of each such Sub-Servicing
Agreement to the extent the terms thereof are not inconsistent with the terms of
this Agreement and the Special Servicer's obligations hereunder.
Section 3.23 Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Depositor,
the Certificate Administrator, the Custodian and the Special Servicer, as of the
Closing Date, that:
(i) The Servicer is a national banking association, duly
organized, validly existing and in good standing under the laws of the
United States of America, and the Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement, except where
the failure to so qualify or comply would not have a material adverse
effect on the ability of the Servicer to perform its obligations
hereunder;
(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 charter and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the Servicer or its property is subject that materially and adversely
affects its ability to perform hereunder;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Servicer, enforceable against the Servicer in
accordance with the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Servicer is not in violation with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which violations are
likely to have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Servicer or its
properties or are likely to have consequences that would materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(v) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations under
this Agreement;
(vi) The Servicer will examine each Sub-Servicing Agreement and
will be familiar with the terms thereof. Any Sub-Servicing Agreements will
comply with the provisions of Section 3.22;
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has been obtained or will be obtained prior to the actual performance by
the Servicer of its obligations under this Agreement, and which, if not
obtained would have a materially adverse effect on the ability of the
Servicer to perform its obligations hereunder;
(viii) The Servicer has full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(ix) The Servicer has examined each Sub-Servicing Agreement to
which it is a party, and shall examine each Sub-Servicing Agreement to
which it intends to become a party, and in each such case, the terms of
such Sub-Servicing Agreements are not, or, in the case of any
Sub-Servicing Agreement to be entered into by the Servicer at a future
date, will not be, materially inconsistent with the terms of this
Agreement; and
(x) Each officer, director, employee, consultant or advisor of
the Servicer that has responsibilities concerning the servicing and
administration of Loans is covered by errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(c). Neither the
Servicer nor any officer, director, employee, consultant or advisor of the
Servicer that is involved in the servicing or administration of Loans has
been refused such coverage or insurance.
(b) The Servicer covenants that any custom-made software or hardware
designed or purchased or licensed by the Servicer and used by it in the course
of the operation or management of, or the compiling, reporting or generation of
data required by this Agreement will not contain any deficiency (x) in the
ability of such software or hardware to identify correctly or perform
calculations or other processing with respect to dates after the Closing Date or
(y) that would cause such software or hardware to be fit no longer for the
purpose for which it was intended by reason of changing the date from 1999 to
2000. Without limiting any rights or remedies of the Trust Fund, the
Certificateholders or any other party hereto for a breach under any other
Section of this Agreement that may arise out of the failure of the Servicer to
be year 2000 ready before January 1, 2000, the Servicer may be terminated
pursuant to Section 7.01(b) for a breach of the covenant set forth in this
Section 3.23(b). The foregoing matters extend and relate only to the internal
functioning of the software and hardware maintained by the Servicer, and the
Servicer shall not be responsible for the accuracy or integrity of any data or
calculations provided to the Servicer by any third party.
(c) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants
of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor, the Certificate Administrator, the Custodian and the Servicer, as
of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
charter and by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets, or
result in the violation of any law, rule, regulation, order, judgment or
decree to which the Special Servicer or its property is subject;
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) Each officer, director or employee of the Special Servicer
that has or, following the occurrence of a Servicing Transfer Event, would
have responsibilities concerning the servicing and administration of Loans
is covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). Neither the Special Servicer nor any
of its officers, directors or employees that is or, following the
occurrence of a Servicing Transfer Event, would be involved in the
servicing or administration of Loans has been refused such coverage or
insurance;
(viii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions contemplated
by this Agreement, except for any consent, approval, authorization or
order which has not been obtained or cannot be obtained prior to the
actual performance by the Special Servicer of its obligations under this
Agreement, and which, if not obtained would not have a materially adverse
effect on the ability of the Special Servicer to perform its obligations
hereunder;
(ix) The Special Servicing Fee represents reasonable servicing
compensation, and the Special Servicing Fee will be treated for tax and
accounting purposes as compensation for servicing the Specially Serviced
Loans;
(x) The Special Servicer has examined each Sub-Servicing
Agreement to which it is a party, and shall examine each Sub-Servicing
Agreement to which it intends to become a party, and in each such case,
the terms of such Sub-Servicing Agreements are not, or, in the case of any
Sub-Servicing Agreement to be entered into by the Special Servicer at a
future date, will not, be materially inconsistent with the terms of this
Agreement; and
(xi) Each officer, director, employee, consultant or advisor of
the Special Servicer that has or, following the occurrence of a Servicing
Transfer Event, would have responsibilities concerning the servicing and
administration of Specially Serviced Loans is covered by errors and
omissions insurance in the amounts and with the coverage required by
Section 3.07(c). Neither the Special Servicer nor any officer, director,
employee, consultant or advisor of the Special Servicer that is or,
following the occurrence of a Servicing Transfer Event, would be involved
in the servicing or administration of Specially Serviced Loans has been
refused such coverage or insurance.
(b) The Special Servicer covenants that any custom-made software or
hardware designed or purchased or licensed by the Special Servicer and used by
it in the course of the operation or management of, or the compiling, reporting
or generation of data required by this Agreement will not contain any deficiency
(x) in the ability of such software or hardware to identify correctly or perform
calculations or other processing with respect to dates after the Closing Date or
(y) that would cause such software or hardware to be fit no longer for the
purpose for which it was intended by reason of changing the date from 1999 to
2000. Without limiting any rights or remedies of the Trust Fund, the
Certificateholders or any other party hereto for a breach under any other
Section of this Agreement that may arise out of the failure of the Special
Servicer to be year 2000 ready before January 1, 2000, the Special Servicer may
be terminated pursuant to Section 7.01(b) for a breach of the covenant set forth
in this Section 3.24(b). The foregoing matters extend and relate only to the
internal functioning of the software and hardware maintained by the Special
Servicer, and the Special Servicer shall not be responsible for the accuracy or
integrity of any data or calculations provided to the Special Servicer by any
third party.
(c) The representations and warranties set forth in paragraph (a)
above and the covenant set forth in paragraph (b) above shall survive the
execution and delivery of the Agreement. The Special Servicer shall indemnify
the Trustee, the Certificate Administrator, the Custodian and the Trust Fund and
hold each of them harmless against any losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from a material breach of the Special Servicer's
representations and warranties contained in paragraph (a) above or the covenant
set forth in paragraph (b) above. Such indemnification shall survive any
termination or resignation of the Special Servicer, and any termination of the
Agreement.
Section 3.25 Servicing of the L'Enfant Participation and
Matters Relating to the Exchange Apartments Loan.
(a) Notwithstanding any of the provisions of Section 4.03 to the
contrary, with respect to any P&I Advance that is made pursuant to Section 4.03
with respect to the L'Enfant Participation, such P&I Advance shall not exceed
the amount due with respect to such participation.
(b) To the extent that the Co-Lender Agreement relating to the
L'Enfant Participation and the L'Enfant Participation Agreement requires
reimbursement of the L'Enfant Servicer of any Servicing Advance, the Servicer
shall reimburse such amount as a Servicing Advance
hereunder.
(c) With respect to any Servicing Advance to be made hereunder with
respect to the L'Enfant Participation, the determination by the L'Enfant
Servicer shall be binding upon the party or parties required to make such
Servicing Advance hereunder, both for determining whether or not such Servicing
Advance should be made and determining how such Servicing Advance should be
reimbursed to such party.
(d) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Servicer's obligations and
responsibilities with respect to the L'Enfant Participation are limited by and
subject to the terms of the L'Enfant Participation Agreement and the related
Co-Lender Agreement.
(e) Upon the occurrence of a Servicing Transfer Event with respect
to the Exchange Apartments Loan, the Certificate Administrator shall offer to
sell to the holder of the Exchange Apartments Other Note the Exchange Apartments
Trust Fund Note in exchange for an amount equal to the sum of the Purchase Price
and the Co-Lender Yield Maintenance Premium (as defined in the Co-Lender
Agreement relating to the Exchange Apartments Loan). In the event the holder of
the Exchange Apartments Other Note accepts such offer, the Certificate
Administrator shall direct payment of the Purchase Price to the Special
Servicer. Upon receipt by the Special Servicer of the Purchase Price, the
Custodian shall release the related Mortgage File to the holder of the Exchange
Apartments Other Note or its designee pursuant to Section 3.10 hereof.
Section 3.26 Limitation on Liability of the Directing
Certificateholder.
By its acceptance of a Certificate, each Certificateholder confirms
its understanding that the Directing Certificateholder may take actions that
favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates and that the Directing Certificateholder may have
special relationships and interests that conflict with those of Holders of some
Classes of the Certificates and, absent willful misfeasance, bad faith,
negligence or negligent disregard of obligations or duties on the part of the
Directing Certificateholder, agrees to take no action against the Directing
Certificateholder as a result of such a special relationship or conflict.
Section 3.27 Reports to the Securities and Exchange
Commission; Available Information.
(a) The Certificate Administrator, at its expense, shall prepare,
and the Trustee shall sign, on behalf of the Depositor, all annual and monthly
Exchange Act Reports; provided, however, that the Depositor shall prepare, sign
and file with the Commission the initial Form 8-K relating to the Trust Fund.
Each Exchange Act Report shall be prepared as an exhibit or exhibits to a Form
8-K. Each Exchange Act Report consisting of an Annual Compliance Report shall be
prepared as an exhibit to an Annual Report on Form 10-K and shall identify the
aggregate number of Holders of Public Certificates and Depository Participants
holding positions in Public Certificates as of January 1 (or the nearest
Business Day if such date is not a Business Day) of the related year.
For each Exchange Act Report, the Servicer and, if applicable, the
Special Servicer, shall prepare (i) manually signed paper versions of their
respective Annual Compliance Reports and (ii) electronic versions of such
reports, which versions shall be prepared as Microsoft Word or Excel for Windows
files (or in such other electronic format as to which the Certificate
Administrator, on the one hand, and the Servicer or the Special Servicer, as
applicable, on the other hand, may agree), provided that the Servicer shall not
be required to provide any such reports or any Exchange Act Reports in EDGAR
compatible format. In the event that the Servicer does not provide any such
reports or Exchange Act Reports in EDGAR compatible format, the Certificate
Administrator shall convert such reports to an EDGAR compatible format.
Exchange Act Reports consisting of (i) the Statement to
Certificateholders shall be filed within fifteen days after the related
Distribution Date; and (ii) an Annual Compliance Report shall be filed on or
prior to March 30 of each calendar year commencing in 2000 to the extent
required under the Exchange Act. The Certificate Administrator shall file each
Exchange Act Report with the Commission by means of the "EDGAR" system in a
manner and in a format required by Regulation S-T. Manually-signed copies of
each Exchange Act Report shall be delivered by the Certificate Administrator to
the Depositor, Attention: Thomas M. Zingalli.
If any Exchange Act Report is incomplete by the date on which such
report is required to be filed under the Exchange Act, the Certificate
Administrator, or with respect to any Annual Compliance Report relating to the
Servicer, the Servicer, or, with respect to any Annual Compliance Report
relating to the Special Servicer, the Special Servicer, shall prepare and
execute a Form 12b-25 under the Exchange Act and the Special Servicer shall
deliver an electronic version of such form to the Certificate Administrator for
filing with the Commission. The Special Servicer shall deliver the related
report in electronic form to the Certificate Administrator when such information
is available. The Servicer shall be deemed not to be in default of Section 3.14
if it fails to deliver a USAP report at the required time provided that it
complies with this paragraph and prepares and executes a Form 12b-25 under the
Exchange Act and delivers an electronic version of such form to the Certificate
Administrator for filing with the Commission.
None of the Servicer, the Special Servicer and the Certificate
Administrator shall file a Form ID with respect to the Depositor. Upon receipt
of information from the Certificate Administrator indicating that there are
fewer than 300 Certificateholders and/or Depository Participants, in the
aggregate, the Certificate Administrator shall prepare a Form 15 relating to the
Trust Fund, file such Form 15 with the Commission and send a copy thereof to the
Depositor, Attention: Thomas M. Zingalli.
(b) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt, also make available any additional information
relating to the Loans, the Mortgaged Properties or the Borrowers, for review by
the Depositor, the Rating Agencies and any other Persons to whom the Servicer
believes such disclosure is appropriate, in each case except to the extent doing
so is prohibited by applicable law or by the related Loan.
(c) The Servicer and the Special Servicer shall make the following
items available at their respective offices during normal business hours, or
shall send such items to any requesting party at the expense of such requesting
party (other than the Rating Agencies, the Depositor and the Underwriters, and
except as otherwise provided in the last sentence of this paragraph) for review
by the Depositor, the Trustee, the Certificate Administrator, the Rating
Agencies, any Certificateholder, any Person identified to the Servicer or the
Special Servicer, as applicable, by a Certificateholder as a prospective
transferee of a Certificate and any other Persons to whom the Servicer or the
Special Servicer, as applicable, believes such disclosure to be appropriate: (i)
all financial statements, occupancy information, rent rolls, retail sales
information, average daily room rates and similar information received by the
Servicer or the Special Servicer, as applicable, from each Borrower, (ii) the
inspection reports prepared by or on behalf of the Servicer or the Special
Servicer, as applicable, in connection with the property inspections pursuant to
Section 3.19, (iii) any and all modifications, waivers and amendments of the
terms of a Loan entered into by the Servicer or the Special Servicer, as
applicable and (iv) any and all officer's certificates and other evidence
delivered to the Trustee, the Certificate Administrator and the Depositor to
support the Servicer's determination that any Advance was, or if made would be,
a Nonrecoverable Advance. Copies of any and all of the foregoing items shall be
available from the Servicer or the Special Servicer, as applicable, or the
Certificate Administrator, upon request. Copies of all such information shall be
delivered by the Servicer or the Special Servicer, as applicable, quarterly to
the Certificate Owners of the Controlling Class (as identified by the related
Depository Participant and for so long as such Class remains outstanding) at the
address specified by such Certificate Owners; provided, however, that if
beneficial ownership of the Controlling Class resides in more than one
Certificate Owner, the Servicer or the Special Servicer, as applicable, shall be
responsible only for the expense of providing the first such copy of such
information and shall be entitled to reimbursement from the Trust Fund for the
expense of any additional copies so provided.
(d) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.28, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(e) Notwithstanding any provisions in this Agreement to the
contrary, the Trustee and the Certificate Administrator 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 and the Certificate Administrator 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, the Certificate
Administrator 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, the
Certificate Administrator and the Trustee and their respective Affiliates,
agents, directors, officers and employees shall be indemnified and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with any legal action relating to any statement or omission or alleged statement
or omission therein. None of the Trustee, the Special Servicer, the Certificate
Administrator and the Servicer shall have any responsibility or liability with
respect to any Exchange Act Report filed by the Depositor, and each of the
Servicer, the Special Servicer, the Certificate Administrator and the Trustee
and their respective Affiliates, agents, directors, officers and employees shall
be indemnified and held harmless by the Trust Fund against any loss, liability
or expense incurred in connection with any legal action relating to any
statement or omission or alleged statement or omission therein.
(f) Notwithstanding anything to the contrary herein, as a condition
to the Servicer or Special Servicer making any report or information available
upon request to any Person other than the parties hereto, the Servicer and
Special Servicer may require that the recipient of such information acknowledge
that the Servicer and Special Servicer may contemporaneously provide such
information to the Depositor, the Trustee, the Certificate Administrator, the
Initial Purchaser, any Underwriter, any Rating Agency and/or Certificateholders
or Certificate Owners. Any transmittal of information by the Servicer or Special
Servicer to any Person other than the Trustee, the Certificate Administrator,
the Rating Agencies or the Depositor may be accompanied by a letter from the
Servicer or Special Servicer containing the following provision:
By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public information
regarding the Trust which issued Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-C1 from purchasing or selling such Certificates in
circumstances where the other party to the transaction is not also
in possession of such information. You also acknowledge and agree
that such information is being provided to you for the purposes of,
and such information may be used only in connection with, evaluation
by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial interest
therein.
The Servicer and the Special Servicer may, at its discretion, make
available by electronic media and bulletin board service certain information and
may make available by electronic media or bulletin board service (in addition to
making such information available as provided herein) any reports or information
required by this Agreement that the Servicer or the Special Servicer is required
to provide to any of the Rating Agencies, the Depositor and anyone the Depositor
reasonably designates.
Section 3.28 Lock-Box Accounts and Servicing Accounts.
(a) The Servicer shall administer each Lock-Box Account, Cash
Collateral Account and Servicing Account in accordance with the related Mortgage
or Loan Agreement, Cash Collateral Account Agreement or Lock-Box Agreement, if
any.
(b) For any Loan that provides that a Lock-Box Account will be
established upon the occurrence of certain events specified in the related Loan
Documents, the Servicer (or, with respect to any Specially Serviced Loan, the
Special Servicer) shall establish on behalf of the Trust such Lock-Box Account
upon the occurrence of such events unless the Servicer (or the Special Servicer,
as applicable) determines, in accordance with the Servicing Standard, that such
Lock-Box Account should not be established. Notwithstanding the foregoing, the
Servicer (or the Special Servicer, as applicable) shall establish a Lock-Box
Account for each ARD Loan no later than its Anticipated Repayment Date.
(c) With respect to each Loan requiring the establishment of a
Lock-Box Account, the Servicer, upon receipt of the annual financial statements
of each Mortgagor, shall compare the gross revenue for the related Mortgaged
Property, as set forth in such financial statements, with the history of the
related Mortgagor's deposits into such Lock-Box Account and shall report any
discrepancies over 10% to the Special Servicer.
(d) Within 60 days after an escrow account has been established on
behalf of a Mortgagor pursuant to the terms of the related Mortgage, the
Servicer shall notify the financial institution maintaining such account of the
Trustee's security interest in the funds in such account in those jurisdictions
where required in order to perfect or maintain perfection of the related
security interest.
Section 3.29 Interest Reserve Account.
(a) The Servicer shall establish, on or before the Closing Date, and
maintain the Interest Reserve Account on behalf of the Lower-Tier REMIC. As of
the Closing Date, the Interest Reserve Account shall be located at the offices
of the Servicer, provided such account is an Eligible Account. The Servicer
shall give notice to the Trustee, the Certificate Administrator, the Special
Servicer and the Depositor of the location of the Interest Reserve Account and,
prior to any change thereof, any new location of the Interest Reserve Account.
On each Servicer Remittance Date ending in any February and on any Servicer
Remittance Date ending in any January which occurs in a year which is not a leap
year, the Servicer shall deposit into the Interest Reserve Account in respect of
each Actual/360 Loan an amount withheld from the related Monthly Payment or
Advance equal to one day's interest on the Stated Principal Balance of such
Actual/360 Loan as of the Distribution Date occurring in the month preceding the
month in which such Servicer Remittance Date occurs at the related Net Mortgage
Rate, to the extent a full Monthly Payment or P&I Advance is made in respect
thereof (all amounts so deposited in any consecutive January and February (or,
in the case of a leap year, in any February), "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the
Servicer shall withdraw from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding December and January Interest Accrual
Periods, if any, and deposit such amount (excluding any net investment income
thereon) into the Lower-Tier Distribution Account.
Section 3.30 Limitations on and Authorizations of the
Servicer and Special Servicer with Respect to Certain Loans.
(a) Prior to taking any action with respect to a Loan secured by any
Mortgaged Properties located in a "one-action" state, the Special Servicer shall
consult with legal counsel, the fees and expenses of which shall be a Servicing
Advance.
(b) With respect to any Loan which permits the related Borrower,
with the consent or grant of a waiver by the mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, the Special Servicer may consent (subject, without limitation, to
Section 3.20(e) hereof) to either such action, or grant a waiver with respect
thereto, only if the Special Servicer determines that such consent or grant of
waiver is likely to result in a greater recovery on a present value basis
(discounted at the related Mortgage Rate) than the withholding of such consent
or grant of waiver, and the Special Servicer first obtains written confirmation
from each Rating Agency that such consent or grant of waiver would not, in and
of itself, result in a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates. The Servicer shall not be
entitled or required to consent to, or grant a waiver with respect to, either
action.
(c) With respect to any ARD Loan, so long as no event of default
beyond applicable notice and grace periods has occurred and is continuing, the
Servicer and the Special Servicer shall not take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the date on which principal and all accrued interest (other
than Excess Interest) has been paid in full. Nothing in this paragraph shall
limit the obligation of the Servicer and the Special Servicer to establish a
Lock-Box Account pursuant to Section 3.28.
(d) With respect to the Loans that (i) require earthquake insurance,
or (ii) (A) at the date of origination were secured by Mortgaged Properties on
which the related Borrower maintained earthquake insurance and (B) have
provisions which enable the Servicer to continue to require the related Borrower
to maintain earthquake insurance, the Servicer shall require the related
Borrower to maintain such insurance in the amount, in the case of clause (i),
required by the Loan and in the amount, in the case of this clause (ii),
maintained at origination, in each case, to the extent such amounts are
available at commercially reasonable rates. Any determination by the Servicer
that such insurance is not available at commercially reasonable rates with
respect to a Loan for which any related Mortgaged Property has a "Probable
Maximum Loss," bounded on the basis of 50 years, in excess of 20% shall be
subject to confirmation by Fitch that such determination not to purchase such
insurance will not result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates rated by Fitch.
(e) (i) Within 10 days after the Closing Date, the Servicer shall
notify the Residual Value Insurer that (A) both the Servicer and the Special
Servicer shall be sent notices under the Residual Value Policy and (B) the
Trustee, on behalf of the Trust, shall be the loss payee under the Residual
Value Policy. The Servicer and the Special Servicer shall abide by the terms and
conditions precedent to payment of claims under the Residual Value Policy and
shall take all such action as may be required to comply with the terms and
provisions of such policy in order to maintain, in full force and effect, such
policy. If the Servicer has written notice or actual knowledge of any event (an
"Insured Event") giving rise to a claim under any Residual Value Policy, the
Servicer shall notify the Special Servicer thereof as soon as reasonably
practicable, but in no event later than three Business Days after learning of
such event. The Special Servicer shall comply with all conditions to coverage,
including (i) preparing and filing a "proof of loss" form containing all
required information with the Residual Value Insurer within five Business Days
and in any event no later than the "termination date" (as defined in the related
policy) after receiving notice of any Insured Event under the related policy,
(ii) providing any other notices required under the Residual Value Policy in a
timely fashion and (iii) taking any other actions which will maximize recovery
under such the Residual Value Policy. The Special Servicer shall diligently
process any claims under the Residual Value Policy in accordance with the
Servicing Standard. The Special Servicer shall give notice to the Servicer of
any claim made under any Residual Value Policy and of any Residual Value Policy
Termination Event of which the Servicer does not already have notice.
(ii) If the Servicer receives notice of any abatement,
rescission, cancellation, termination, contest, legal process, arbitration or
disavowal of liability with respect to any Residual Value Policy (a "Residual
Value Policy Termination Event"), the Servicer shall, within three Business Days
after receipt of such notice, notify the Special Servicer, the Trustee and the
Rating Agencies of such Residual Value Policy Termination Event in writing. Upon
receipt of such notice, the Special Servicer shall, notwithstanding that the
servicing of the related Loan may not have been transferred to the Special
Servicer in accordance with Section 3.21 hereof, address such Residual Value
Policy Termination Event in accordance with the Servicing Standard. Any legal
fees incurred in connection with a resolution of a Residual Value Policy
Termination Event shall be paid by the Servicer as a Servicing Advance and shall
be reimbursable to it from the Borrower or other responsible party, and if not
recoverable, then such legal fees shall be reimbursable as a Nonrecoverable
Advance.
(f) The Servicer and Special Servicer shall review and be familiar
with the terms and conditions relating to enforcing claims and shall monitor the
dates by which any claim or action is required to be taken (including delivering
any notices to the Residual Value Insurer and performing any actions required
under the Residual Value Insurance Policy) under each insurance policy to
realize the full value of such policy for the benefit of Certificateholders.
(g) The Special Servicer shall not consent to a change of franchise
affiliation with respect to any hotel property that in whole or in part
constitutes the Mortgaged Property securing a Loan unless it obtains written
confirmation from each Rating Agency that such change of franchise affiliation
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the then-current ratings on any Class of Certificates. The Special Servicer
shall not be required to obtain such written consent from DCR if the
then-current principal balance of such Loan is less than 2% of the then-current
aggregate principal balance of the Loans.
(h) With respect to any Loan that permits the related Borrower to
incur subordinate indebtedness secured by the related Mortgaged Property, the
Special Servicer shall enforce the rights of the lender, if any, under the Loan
Documents to require such borrower to enter into a subordination and standstill
agreement with the lender of such subordinate indebtedness.
(i) The Servicer or Special Servicer, as applicable, shall provide
notice to DCR and prepare and provide DCR with any internal memorandum prepared
by the Servicer or Special Servicer outlining its analysis and recommendation in
accordance with the Servicing Standard (together with copies of all relevant
documentation) for all consents, approvals or authorizations granted by the
Servicer or Special Servicer for transfers, assumptions, encumbrances,
additional debt, material amendments, grants of easement or encumbrance,
franchise affiliation changes and property manager changes concerning Mortgage
Loans, including consents, approvals or authorizations granted pursuant to
Sections 3.08(a), (b) and (i), 3.19(c), 3.20(a)(i) and 3.30(g).
(j) Within 10 days after the Closing Date, the Servicer shall notify
the Environmental Policy Insurer that (A) both the Servicer and the Special
Servicer shall be sent notices under the Environmental Policy and (B) the
Trustee, on behalf of the Trust, shall be the loss payee under the Environmental
Policy. The Servicer and the Special Servicer shall abide by the terms and
conditions precedent to payment of claims under the Environmental Policy and
shall take all such action as may be required to comply with the terms and
provisions of such policy in order to maintain, in full force and effect, such
policy.
(k) The Depositor shall, as to each Loan which is secured by the
interest of the related Mortgagor under a ground lease, at its own expense,
promptly (and in any event within 45 days of the Closing Date) notify the
related ground lessor of the transfer of such Loan to the Trust pursuant to this
Agreement and inform such ground lessor that any notices of default under the
related ground lease should thereafter be forwarded to the Trustee and the
Custodian.
Section 3.31 REMIC Administration.
(a) The Certificate Administrator shall make or cause to be made
elections to treat each of the Lower-Tier REMIC and the Upper-Tier REMIC as a
REMIC under the Code and if necessary, under State Tax Laws. Each such election
will be made on Form 1066 or other appropriate federal tax or information return
or any appropriate state return for the taxable year ending on the last day of
the calendar year in which the Certificates are issued, which in each case shall
be signed by the Trustee. The Certificate Administrator shall designate the
"regular interests" and the "residual interests," within the meaning of the
REMIC Provisions, in each REMIC as set forth in the Preliminary Statement
hereto. To the extent the affairs of the Trust Fund are within their control,
the Servicer, the Special Servicer and the Certificate Administrator shall not
permit the creation of any "interests" (within the meaning of Section 860G of
the Code) in either REMIC created hereunder other than the Uncertificated
Lower-Tier Interests (excluding the Class LR Certificates) and the Certificates
(other than the Class V-1 and Class V-2 Certificates).
(b) The Closing Date is hereby designated as the "Startup Day" for
each REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the largest Percentage Interest of the Class LR
Certificates is hereby designated, and by the acceptance of its Class LR
Certificate agrees to act, as Tax Matters Person for the Lower-Tier REMIC. Any
Holder of a Class LR or Class R Certificate must at all times hold a 13.73%
Percentage Interest therein. The Holder of the Class R Certificates is hereby
designated, and by the acceptance of its Class R Certificate agrees to act, as
Tax Matters Person for the Upper-Tier REMIC. The Certificate Administrator is
hereby designated as the agent of the Tax Matters Person of each of the
Lower-Tier REMIC and the Upper-Tier REMIC and shall perform all the functions
thereof, and the Holders of the Class LR and Class R Certificates, by their
acceptance of such Certificates, agree to such designation.
(d) The Certificate Administrator shall prepare or cause to be
prepared all of the Tax Returns that it reasonably determines are required with
respect to each REMIC created hereunder. Promptly upon receipt of any tax return
from the Certificate Administrator, the Trustee shall sign and return such tax
return to the Certificate Administrator. The Certificate Administrator shall
file such Tax Returns in a timely manner. The expenses of preparing such returns
shall be borne by the Certificate Administrator without any right of
reimbursement therefor.
(e) The Certificate Administrator shall provide (i) upon request by
any Transferor of a Class LR or Class R Certificate, such information to such
Transferor and the IRS as is (x) reasonably necessary for the application of any
tax relating to the transfer of a Class LR or Class R Certificate to any Person
who is not a Disqualified Organization or (y) otherwise required to be provided
by Treasury Regulation Section 1.860E-2 (and in the time and manner required to
be provided to such person under such Regulation), (ii) to the
Certificateholders such information or reports as are required by the Code, the
REMIC Provisions or State Tax Laws including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service the name, title, address
and telephone number of the person who will serve as the representative of each
of the REMICs.
(f) The Certificate Administrator shall take such actions and shall
cause each REMIC created hereunder to take such actions as are reasonably within
the Certificate Administrator's control and the scope of its duties more
specifically set forth herein as shall be necessary to maintain the status
thereof as REMICs under the REMIC Provisions (and the Servicer, the Trustee and
Special Servicer shall assist the Certificate Administrator, to the extent
reasonably requested by the Certificate Administrator to do so). None of the
Servicer, the Special Servicer, the Trustee or the Certificate Administrator
shall knowingly or intentionally take any action, cause either REMIC created
hereunder to take any action or fail to take (or fail to cause to be taken) any
action reasonably within its control and the scope of duties more specifically
set forth herein, that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) cause either REMIC created hereunder to fail to
qualify as a REMIC or (ii) result in the imposition of a tax under the REMIC
Provisions upon either REMIC created hereunder (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code)
(either such event, an "Adverse REMIC Event") unless such party receives an
Opinion of Counsel (at the expense of the party seeking to take such action or,
if such party fails to pay such expense, and such party determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of such party) to the effect that the contemplated action will not, with
respect to either of the REMICs created hereunder, cause either REMIC to fail to
qualify as a REMIC or, unless such party (which is acceptable to the Certificate
Administrator) determines that the monetary expense to both REMICs is not
material and in its sole discretion to indemnify (to the extent reasonably
acceptable to the Certificate Administrator) the Trust Fund against such tax,
result in the imposition of such a tax. Wherever in this Agreement a
contemplated action may not be taken because the timing of such action might
result in the imposition of a tax on the Trust Fund, or may be taken only
pursuant to an Opinion of Counsel that such action would impose a tax on the
Trust Fund, such action may nonetheless be taken so long as (x) the indemnity
given in the preceding sentence with respect to any taxes that might be imposed
on the Trust Fund has been given and (y) all other preconditions to the taking
of such action have been satisfied. The Certificate Administrator shall not take
any action (whether or not authorized hereunder) as to which the Servicer has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to the Trust Fund or its
assets, or causing the Trust Fund to take any action, which is not expressly
permitted under the terms of this Agreement, each of the parties hereto will
consult with the Certificate Administrator or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur with
respect to either REMIC created hereunder, and such party shall not take any
such action, or cause either such REMIC to take any such action, as to which the
Certificate Administrator has advised it in writing that an Adverse REMIC Event
could occur. The Certificate Administrator may consult with counsel to make such
written advice, and the cost of same shall be borne by the party seeking to take
the action not expressly permitted by this Agreement. At all times as may be
required by the Code, the Certificate Administrator will to the extent within
its control and the scope of its duties as specifically set forth herein,
maintain substantially all of the assets of the Trust Fund as "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of either REMIC created hereunder as defined in Section 860F(a)(2)
of the Code, on "net income from foreclosure property" of either REMIC as
defined in Section 860G(c) of the Code, or any other tax is imposed by the Code
or any applicable provisions of state or local tax laws, such tax shall be
charged (i) to a Servicer, if such tax arises out of or results from a breach by
such Servicer of any of its obligations under this Agreement and such breach is
not caused by the breach of another party, (ii) to the Certificate
Administrator, if such tax arises out of or results from a breach by the
Certificate Administrator of any of its obligations under this Agreement and
such breach is not caused by the breach of another party and (iii) otherwise,
against amounts on deposit in the Collection Account, and on the Distribution
Date(s) following such reimbursement the aggregate of such taxes shall be
allocated in reduction of the Optimal Interest Distribution Amount on each Class
entitled thereto in the same manner as if such taxes constituted an Uncovered
Prepayment Interest Shortfall Amount.
(h) The Certificate Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following the Startup Day, none of the Servicer, the Certificate
Administrator or the Trustee shall accept any contributions of assets to either
REMIC created hereunder unless the Servicer, the Certificate Administrator and
the Trustee shall have received an Opinion of Counsel (at the expense of the
party seeking to make such contribution) to the effect that the inclusion of
such assets in either REMIC created hereunder will not cause such REMIC to fail
to qualify as a REMIC at any time that any Certificates are outstanding or
subject either REMIC created hereunder to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(j) None of the Servicer, the Special Servicer, the Certificate
Administrator or the Trustee shall enter into any arrangement by which either
REMIC created hereunder will receive a fee or other compensation for services
nor, to the extent reasonably within their control, permit either such REMIC to
receive an income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Balance of each Class of Regular Certificates created hereunder would be reduced
to zero is the Rated Final Distribution Date, including for this purpose the
Class O Certificates.
(l) Within 30 days after the Closing Date, the Certificate
Administrator shall prepare and file with the Internal Revenue Service Form
8811, "Information Return for Real Estate Mortgage Investment Conduits (REMIC)
and Issuers of Collateralized Debt Obligations" (or applicable successor form)
for the Upper-Tier REMIC created hereunder.
(m) None of the Trustee, the Certificate Administrator, the Servicer
or the Special Servicer shall sell or dispose of or substitute for any of the
Loans (except in connection with (i) the default, imminent default or
foreclosure of a Loan, including but not limited to, the acquisition or sale of
a Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the
bankruptcy of either REMIC created hereunder, (iii) the termination of either
REMIC created hereunder pursuant to Article X of this Agreement or (iv) a
purchase of Loans pursuant to Article II or Section 3.18 of this Agreement) nor
acquire any assets for either REMIC created hereunder, nor sell or dispose of
any investments in the Collection Account for gain, nor accept any contributions
to either REMIC created hereunder after the Closing Date, unless it has received
an Opinion of Counsel that such sale or disposition will not affect adversely
the status of either REMIC as a REMIC or cause either REMIC created hereunder to
be subject to a tax on "prohibited transactions" or "contributions" pursuant to
the REMIC Provisions.
(n) The Depositor shall provide or cause to be provided to the
Certificate Administrator, within ten (10) days after the Closing Date, and
thereafter on an ongoing basis, all information or data requested by the
Certificate Administrator that the Certificate Administrator reasonably
determines to be relevant for tax purposes as to the valuations and Issue Prices
of the Certificates, including without limitation, the price, yield, original
issue discount, market discount or premium and projected cash flow of the
Certificates. In addition, the Servicer, the Special Servicer, the Trustee and
the Depositor shall provide on a timely basis to the Certificate Administrator
or its designee such information with respect to the Trust Fund as is in its
possession and reasonably requested by the Certificate Administrator to enable
it to perform its obligations under this Article. The Certificate Administrator
shall be entitled to rely conclusively upon all such information so provided to
it without recalculation or other investigation.
(o) The Certificate Administrator and the Trustee shall be entitled
to reasonable compensation and to the reimbursement of its reasonable expenses
incurred in the performance of its duties under this Section 3.31 as may be
agreed upon by the Certificate Administrator and the Depositor; provided,
however, that the Certificate Administrator and the Trustee shall pay out of its
own funds, without any right of reimbursement, any and all ordinary expenses of
the Trust Fund incurred in the performance of its duties under this Article but
shall be reimbursed, except as otherwise expressly provided for herein, by the
Trust Fund for any of its extraordinary expenses, including any taxes or
tax-related payments, any expenses involved in any tax examination, audit or
proceeding, and the expense of any tax-related Opinion of Counsel or other
professional advice requested by the Certificate Administrator for the benefit
or protection of the Certificateholders.
(p) The Certificate Administrator shall treat the rights of the
Certificateholders to receive Yield Protection Payments as assets that the
Certificate Administrator holds separate and apart from the Certificateholders'
respective portions of the Certificates treated as REMIC regular interests, and
shall treat the Certificateholders as owning their respective portions of the
Certificates treated as REMIC regular interests and their respective portions of
the rights to receive Yield Protection Payments represented by the respective
Certificates. Notwithstanding any other provision of this Agreement, the rights
of the Certificateholders to receive Yield Protection Payments will not be
treated as assets of either REMIC created pursuant to this Agreement.
Section 3.32 Servicer and Special Servicer May Own
Certificates.
(a) The Servicer and any agent of the Servicer in its individual or
any other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Servicer or such agent, except with
respect to Voting Rights, as set forth in the definition of "Certificateholder."
(b) The Special Servicer and any agent of the Special Servicer in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Special
Servicer or such agent, except with respect to Voting Rights, as set forth in
the definition of "Certificateholder."
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date prior to the date on which the
Certificate Balance of the last outstanding Class of Subordinate Certificates
has been reduced to zero, to the extent of the Available Distribution Amount for
such Distribution Date, the Certificate Administrator shall transfer or be
deemed to transfer such amounts from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account in the amounts and priorities set forth in
Section 4.01(b) with respect to each Class of Uncertificated Lower-Tier
Interests, and immediately thereafter, shall make distributions thereof from the
Upper-Tier Distribution Account in the following order of priority, satisfying
in full, to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority from the Available
Distribution Amount:
(i) concurrently, to the Class A-1, Class A-2 and Class A-X
Certificates, pro rata, up to the Optimal Interest Distribution Amounts
for each such Class for such Distribution Date;
(ii) to the Class A-1, and Class A-2 Certificates, in reduction
of the Certificate Balances thereof, an amount up to the Principal
Distribution Amount for such Distribution Date, in the following order of
priority:
first, to the Class A-1 Certificates, until the Certificate
Balance thereof has been reduced to zero; and
second, to the Class A-2 Certificates, until the Certificate
Balance thereof has been reduced to zero;
(iii) to the Class A-1, and Class A-2 Certificates, pro rata
(based on the aggregate unreimbursed Collateral Support Deficit previously
allocated to each such Class), until all amounts of such Collateral
Support Deficit previously allocated to such Classes, but not previously
reimbursed, have been reimbursed in full;
(iv) to the Class B Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(v) to the Class B Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(vi) to the Class B Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class B Certificates, but not
previously reimbursed, have been reimbursed in full;
(vii) to the Class C Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(viii) to the Class C Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(ix) to the Class C Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class C Certificates, but not
previously reimbursed, have been reimbursed in full;
(x) to the Class D Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xi) to the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xii) to the Class D Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class D
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) the Class E Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xiv) to the Class E Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xv) to the Class E Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class E Certificates, but not
previously reimbursed, have been reimbursed in full;
(xvi) to the Class F Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xvii) to the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xviii) to the Class F Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class F
Certificates, but not previously reimbursed, have been reimbursed in full;
(xix) to the Class G Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xx) to the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xxi) to the Class G Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class G
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxii) to the Class H Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxiii) to the Class H Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxiv) to the Class H Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class H
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxv) to the Class J Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxvi) to the Class J Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxvii) to the Class J Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class J
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxviii) to the Class K Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxix) to the Class K Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxx) to 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;
(xxxi) to the Class L Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxii) to the Class L Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxxiii) to the Class L Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class L
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxiv) to the Class M Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxv) to the Class M Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxxvi) to the Class M Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class M
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxvii) to the Class N Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxviii)to the Class N Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxxix) to the Class N Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class N
Certificates, but not previously reimbursed, have been reimbursed in full;
(xl) to the Class O Certificates, in respect of
interest, up to the Optimal Interest Distribution Amount for such
Class for such Distribution Date;
(xli) to the Class O Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xlii) to the Class O Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class O
Certificates, but not previously reimbursed, have been reimbursed in full;
and
(xliii) to the Class R and Class LR Certificates, the amount, if
any, remaining in the Upper-Tier REMIC and the Lower-Tier REMIC,
respectively.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions from the Lower-Tier Distribution Account in
respect of principal or reimbursement of Collateral Support Deficit in an amount
equal to the amount of principal or reimbursement of Collateral Support Deficit
distributable to such Uncertificated Lower-Tier Interest's respective Class of
Related Certificates as provided in Sections 4.01(a) and (c). During each
Interest Accrual Period, each Uncertificated Lower -Tier Interest shall accrue
interest in an amount equal to the principal balance of each such Uncertificated
Lower-Tier Interest multiplied by the Weighted Average Net Mortgage Rate.
On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions in respect of interest in an amount equal to the sum
of (i) the amount of interest that will actually be distributed in respect of
such Uncertificated Lower-Tier Interest's Related Certificate and (ii) the
amount of interest that will actually be distributed in respect of such
Uncertificated Lower-Tier Interest's corresponding Related Component. In all
events, the amount accrued in respect of each Uncertificated Lower-Tier Interest
less the amount actually distributed in respect of such Uncertificated
Lower-Tier Interest shall equal the sum of (i) the Interest Shortfall Amount
allocated to such Uncertificated Lower-Tier Interest's Related Certificates,
(ii) the Interest Shortfall Amount allocated to the Related Component and
attributable to such Uncertificated Lower-Tier Interest and (iii) any
Certificate Deferred Interest allocated to such Uncertificated Lower-Tier
Interest. Any amounts remaining in the Lower-Tier REMIC after payment to the
Uncertificated Lower-Tier Interest and payment of expenses of the Trust Fund
shall be distributed to the Class LR Certificate[s]. Such amounts distributed to
the Uncertificated Lower-Tier Interests in respect of principal, interest and
reduction of Collateral Support Deficit with respect to any Distribution Date
are referred to herein collectively as the "Lower-Tier Distribution Amount" and
shall be made by the Certificate Administrator by depositing such Lower-Tier
Distribution Amount in the Upper-Tier Distribution Account.
As of any date, payments of principal in respect of the Loans and
the Collateral Support Deficit shall be allocated to the Uncertificated
Lower-Tier Interests such that the sum of the principal balance after
application of any Collateral Support Deficit of each Uncertificated Lower-Tier
Interest and the cumulative amount of Collateral Support Deficit allocated to
such Class of Uncertificated Lower-Tier Interests equals the sum of the
Certificate Balance of the Related Certificates after the application of any
Collateral Support Deficit with respect thereto and the cumulative amount of
Collateral Support Deficit allocated to such Class of Related Certificates. The
initial principal balance of each Uncertificated Lower-Tier Interest equals the
respective Original Lower-Tier Principal Amount. The interest rate with respect
to each Uncertificated Lower-Tier Interest will be the Weighted Average Net
Mortgage Rate.
Interest Shortfall Amounts allocated to the Class A-X Certificates
shall be attributed first, to the most senior Uncertificated Lower-Tier Interest
outstanding to the extent of its Related Component and, then, to the next most
senior Uncertificated Lower-Tier Interest to the extent of its Related
Component, until all such amounts are allocated. Any amounts so allocated shall
have the same seniority as interest payments due on the Class A-X Certificates.
Interest shall be treated as accrued rather than paid on an Uncertificated
Lower-Tier Interest to the extent that its Related Class of Certificates is
treated as earning Certificate Deferred Interest, and any such interest shall be
added to the principal balance of such Uncertificated Lower-Tier Interest so as
to cause its principal balance to equal the principal balance of its Related
Class of Certificates. Any amount that remains in the Lower-Tier Distribution
Account on each Distribution Date after distribution of the Lower-Tier
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates (but only to the extent of the Available Distribution Amount for
such Distribution Date remaining in the Lower-Tier Distribution Account, if
any). Prepayment Interest Shortfalls shall be allocated to each Class of
Uncertificated Lower-Tier Interests on the basis of their respective interest
entitlements.
(c) Notwithstanding the foregoing, on each Distribution Date
occurring on or after the date on which the Certificate Balance of the last
outstanding Class of Subordinate Certificates has been reduced to zero, the
Certificate Administrator shall apply amounts on deposit in the Upper-Tier
Distribution Account in the following order of priority: (i) concurrently, to
the Class A-1, Class A-2 and Class A-X Certificates, pro rata, in respect of the
Optimal Interest Amount allocable to each such Class; (ii) to the Class A-1, and
Class A-2 Certificates, pro rata in reduction of the Certificate Balances
thereof, until the Certificate Balance of each such Class has been reduced to
zero; and (iii) to the Class A-1, and Class A-2 Certificates, pro rata (based on
the aggregate unreimbursed Collateral Support Deficit previously allocated to
such Class) until all amounts of such Collateral Support Deficit previously
allocated to such Classes but not previously reimbursed have been reimbursed in
full.
(d) On each Servicer Remittance Date, the Servicer shall deposit all
Prepayment Premiums and Yield Maintenance Charges in the Lower-Tier Distribution
Account for payment to the Uncertificated Lower-Tier Interests. On each
Distribution Date, the Certificate Administrator shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Prepayment
Premiums and Yield Maintenance Charges actually collected on the Loans or any
REO Loans during the related Due Period and shall distribute such amount to the
Lower-Tier Interests, pro rata in proportion to their outstanding principal
balances.
(e) On each Distribution Date, the Certificate Administrator shall
withdraw any amounts on deposit in the Upper-Tier Distribution Account that
represent Prepayment Premiums and Yield Maintenance Charges actually collected
on Loans or REO Loans during the related Due Period and remitted in respect of
the Uncertificated Lower-Tier Interests pursuant to Section 4.01(d), and shall
distribute such amounts as follows:
(i) Prepayment Premiums shall be distributed to the Class A-1,
Class A-2, Class B, Class C, Class D, Class E and Class F Certificates, in
an amount equal to the product of (a) a fraction whose numerator is the
amount distributed as principal to such Class on such Distribution Date,
and whose denominator is the total amount distributed as principal to the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates on such Distribution Date, (b) 25% and (c) the total amount
of Prepayment Premiums collected during the related Due Period. Any
Prepayment Premiums collected during the related Due Period and remaining
after such distributions shall be distributed to the Holders of the Class
A-X Certificates; and
(ii) Yield Maintenance Charges shall be distributed to the Class
A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates, in an amount equal to the product of (a) a fraction whose
numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed
as principal to the Class A-1, Class A-2, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
and Class O Certificates on such Distribution Date, (b) the Base Interest
Fraction for the related Principal Prepayment and such Class of
Certificates and (c) the aggregate amount of Yield Maintenance Charges
collected on such Principal Prepayment during the related Due Period. Any
Yield Maintenance Charges collected during the related Due Period
remaining after such distributions shall be distributed to the Holders of
the Class A-X Certificates.
Following the reduction of the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E and Class F Certificates to
zero, the Certificate Administrator shall distribute to the Class A-X
Certificates all Yield Maintenance Charges and Prepayment Premiums actually
received during the related Due Period with respect to the Loans and remitted in
respect of Uncertificated Lower-Tier Interests pursuant to Section 4.01(d).
(f) On any applicable Distribution Date, (i) any Excess Interest
collected in respect of the CSFB Loans for such Distribution Date shall be
distributed from the Excess Interest Distribution Account to the Class V-1
Certificates and (ii) any Excess Interest collected in respect of the MS Loans
for such Distribution Date shall be distributed from the Excess Interest
Distribution Account to the Class V-2 Certificates.
(g) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise specifically provided in Sections 4.01(h), 4.01(i) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Certificate Administrator with written
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates) and is the registered owner of
Certificates with an aggregate initial Certificate Balance (or in the case of
the Class A-X Certificates, a Notional Balance) of at least $5,000,000 or, in
the case of the Class V-1, Class V-2 Certificates, a Percentage Interest equal
to 25% or, in the case of the Class R or Class LR Certificates, a Percentage
Interest equal to 13.73%, or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) shall be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Administrator or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Administrator, the Depositor, the Servicer, the Special Servicer,
the Underwriters or the Initial Purchaser shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the
Certificate Administrator expects that the final distribution with respect to
any Class of Certificates (determined without regard to any possible future
reimbursement of any amount of Collateral Support Deficit previously allocated
to such Class of Certificates) will be made on the next Distribution Date, the
Certificate Administrator shall, no later than two Business Days following the
related P&I Advance Determination Date, post a notice on the Website to the
effect that no interest shall accrue on such Certificates from and after such
Distribution Date.
Any funds not distributed to any Holder or Holders of Definitive
Certificates of any Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held uninvested in trust and credited to the account or accounts of
the appropriate non-tendering Holder or Holders. If any Definitive Certificates
as to which notice has been given pursuant to Section 4.01(h) shall not have
been surrendered for cancellation within six months after the time specified in
such notice, the Certificate Administrator shall mail a second notice to the
remaining non-tendering Definitive Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such Definitive
Certificates shall not have been surrendered for cancellation, the Certificate
Administrator, directly or through an agent, shall take such steps to contact
the remaining non-tendering Definitive Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such Definitive
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Definitive
Certificateholder on any amount held in trust hereunder by the Certificate
Administrator as a result of such Definitive Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h).
(i) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective Class
otherwise entitled to distributions of interest and principal on such Class on
the relevant Distribution Date; provided, however, that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 10.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Certificate Administrator shall attempt to contact such
prior Holder in the manner contemplated by Section 4.01(i) as if such Holder had
failed to surrender its Certificates.
(j) Shortfalls in the Available Distribution Amount on any
Distribution Date resulting from Prepayment Interest Shortfalls not covered by
compensation to the Servicer pursuant to the last paragraph of Section 3.11(a)
shall be allocated to each Class of Regular Certificates, pro rata, based on the
Accrued Certificate Interest Amount distributable to each such Class on such
Distribution Date. The amount by which the servicing compensation is to be
reduced in connection with Prepayment Interest Shortfalls pursuant to the last
paragraph of Section 3.11(a) shall be deposited by the Servicer into the
Collection Account on or prior to the Servicer Remittance Date.
Shortfalls in the Available Distribution Amount resulting from
unanticipated Trust Fund indemnification expenses incurred pursuant to Section
6.03 and Section 8.05 shall be allocated to each Class of Regular Certificates,
pro rata, based on the Accrued Certificate Interest Amount distributable to each
such Class. Unanticipated indemnification expenses which are applied to each
Class of Certificates shall be allocated to the Uncertificated Lower-Tier
Interests corresponding to such Classes.
(k) On each Distribution Date on which the Holders of a Class or
Classes of Regular Certificates receive a distribution of Additional Collateral
Prepayment Amounts (which distribution shall be deemed made after application of
that portion of the Principal Distribution Amount other than such Additional
Collateral Prepayment Amounts), (i) the Regular Yield Protection Payment Amount
for such Distribution Date shall be distributed to such Class or Classes pro
rata in accordance with the portion of such Additional Collateral Prepayment
Amount that is allocated to each such Class and (ii) the Class A-X Yield
Protection Payment Amount for such Distribution Date shall be distributed to the
Holders of the Class A-X Certificates, in each case from the Yield Protection
Payment Account.
Section 4.02 Statements to Certificateholders; Reports
by Certificate Administrator; Other Information Available to the Holders
and Others.
(a) On each Distribution Date, based solely upon the information
regarding the Loans set forth in the Servicer Remittance Report prepared by the
Servicer and the other reports prepared by the Servicer and Special Servicer
relating to such Distribution Date, and only to the extent such information is
provided to the Certificate Administrator by the Servicer or Special Servicer,
the Certificate Administrator shall prepare and make available, and, upon
request, forward, to any interested party, including, but not limited to, each
Holder of a Certificate, with copies to the Depositor, the Trustee and any of
its designees, the Servicer, the Special Servicer, the Underwriters, each Rating
Agency, Bloomberg, L.P., the Trepp Group, Charter Research Corporation and Intex
Solutions, Inc. and, if requested, any potential investors in the Certificates,
a written report (a "Statement to Certificateholders") setting forth the
following information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates applied to
reduce the respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable
to (A) such Class's Optimal Interest Distribution Amount and, separately
stated, the portion thereof representing the Unpaid Interest Shortfall
Amount for such Class, (B) Prepayment Premiums and (C) Yield Maintenance
Charges;
(iii) separately stated, the aggregate amounts of Uncovered
Prepayment Interest Shortfall Amounts, Certificate Deferred Interest and
indemnification expenses of the Trust Fund allocable to the Holders of
each Class of Certificates on such Distribution Date;
(iv) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Regular Certificates, before
and after giving effect to the distributions made on such Distribution
Date, separately identifying any reduction in the aggregate Certificate
Balance (or, in the case of the Class A-X Certificates, the aggregate
Notional Balance) of each such Class due to any Collateral Support
Deficit;
(v) the Pass-Through Rate for each Class of Certificates
applicable to such Distribution Date;
(vi) the number of outstanding Loans and the aggregate unpaid
principal balance of the Loans at the close of business on the related
Distribution Date;
(vii) the number and aggregate unpaid principal balance of Loans
(A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C) delinquent
90 days or more, (D) that are Specially Serviced Loans and not delinquent,
(E) as to which foreclosure proceedings have been commenced or (F) with
respect to which the related Borrowers are in bankruptcy;
(viii) with respect to any REO Loan as to which the related
Mortgaged Property became an REO Property during the preceding calendar
month, the city, state, property type, latest Debt Service Coverage Ratio,
Stated Principal Balance and the unpaid principal balance of such Loan;
(ix) as to any Loan repurchased by a Mortgage Loan Seller, FINOVA
or FINOVA Capital or otherwise liquidated or disposed of during the
related Due Period, (A) the Loan Number of the related Loan and (B) the
amount of proceeds of any repurchase of a Loan, Liquidation Proceeds
and/or other amounts, if any, received thereon during the related Due
Period and the portion thereof included in the related Available
Distribution Amount for such Distribution Date;
(x) with respect to any REO Property included in the Trust Fund
at the close of business on the related Due Date (A) the Loan Number of
the related Loan, (B) the value of such REO Property based on the most
recent Appraisal or valuation, and (C) the aggregate amount of income and
other revenues collected by the Special Servicer with respect to such REO
Property during the related Due Period and the portion thereof included in
the related Available Distribution Amount for such Distribution Date;
(xi) with respect to any REO Property sold or otherwise disposed
of during the related Due Period and for which a Final Recovery
Determination has been made, (A) the Loan Number of the related Loan, (B)
the amount of sale proceeds and other amounts, if any, received in respect
of such REO Property during the related Due Period and the portion thereof
included in the related Available Distribution Amount for such
Distribution Date and (C) the date of the Final Recovery Determination;
(xii) the amount of Principal Prepayments (in the aggregate) made
during the related Due Period, the amount of any Yield Maintenance
Charges, Prepayment Premiums and/or Yield Protection Payments (in the
aggregate) paid during the related Due Period and the aggregate amount of
any Prepayment Interest Shortfalls not covered by the Servicer for such
Distribution Date;
(xiii) the amount of Servicing Advances and P&I Advances
outstanding (net of reimbursed Advances) which have been made by the
Servicer or the Trustee in the aggregate and by Mortgaged Property or
Loan, as the case may be;
(xiv) the aggregate amount of Servicing Fees, Special Servicing
Fees and other servicing compensation retained by or paid to the Servicer
and the Special Servicer during the related Due Period;
(xv) the amount of any Appraisal Reduction Amounts allocated
during the related Due Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Due Period; and the total
Appraisal Reduction Amounts as of such Distribution Date on a loan-by-loan
basis;
(xvi) the Collateral Support Deficit, if any for such
Distribution Date;
(xvii) the Pass-Through Rate for each Class of Certificates
applicable for such Distribution Date;
(xviii) Trust Fund expenses incurred during the related Due
Period;
(xix) the amount of Collateral Support Deficit; and
(xx) ratings of the Rating Agencies on all applicable Classes of
Certificates.
In the case of information furnished pursuant to subclauses (i),
(ii) and (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Certificate Administrator shall make
available, and, upon written request, forward to each Holder of a Class R or
Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R or Class LR
Certificates on such Distribution Date. Such obligation of the Certificate
Administrator shall be deemed to have been satisfied to the extent that it
provided substantially comparable information pursuant to any requirements of
the Code as from time to time in force.
Within a reasonable period of time after the end of each calendar
year, the Certificate Administrator shall make available, and, upon written
request, send to each Person who at any time during the calendar year was a
Certificateholder of record, a report summarizing on an annual basis (if
appropriate) the items provided to Certificateholders pursuant to Section
4.02(a)(ii) above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates held by Persons other than Holders exempted from the reporting
requirements and information regarding the expenses of the Trust. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
(b) On or prior to each Distribution Date, based on information
provided in reports prepared by the Servicer and the Special Servicer and
delivered to the Certificate Administrator in accordance herewith, the
Certificate Administrator shall make available via the Website or, upon request,
forward to any interested party (i) the related Statement to Certificateholders,
(ii) the Loan Periodic Update File, Loan Set-Up File, Bond Level File and
Collateral Summary File, (iii) the Unrestricted Servicer Reports and (iv) as a
convenience for interested parties (and not in furtherance of the distribution
thereof under the securities laws), the Prospectus Supplement, the Prospectus
and this Agreement. The Certificate Administrator shall also make each Statement
to Certificateholders available to any interested party via its fax-on-demand
service which can be accessed by calling (301) 815-6610.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Servicer and the Special
Servicer and delivered to the Certificate Administrator in accordance herewith,
the Certificate Administrator shall make available via the Website or, upon
request, forward, solely to Privileged Persons, (i) the Restricted Servicer
Reports and (ii) the Property File.
The Certificate Administrator shall also make available to any
Privileged Person the Investor Q&A Forum. The "Investor Q&A Forum" shall be a
service offered by the Certificate Administrator, as facilitator, through the
Website and shall permit users to (i) submit questions to the Certificate
Administrator via e-mail, which questions relate to the Loans or the Mortgaged
Properties ("Investor Inquiries"), and (ii) view Investor Inquiries previously
submitted and the answers thereto. Upon receipt of a submission from a user, the
Certificate Administrator shall forward the Investor Inquiry to either the
Servicer (if such Investor Inquiry relates to a Loan that is not a Specially
Serviced Loan) or the Special Servicer (if such Investor Inquiry relates to a
Specially Serviced Loan) within 4 Business Hours of receipt thereof. With
respect to any Investor Inquiry forwarded to the Servicer, within one Business
Day of receipt of such Investor Inquiry from the Certificate Administrator, the
Servicer shall determine whether answering such Investor Inquiry would not be in
the best interests of the Trust and/or the Certificateholders. If the Servicer
determines that answering such Investor Inquiry would be in the best interests
of the Trust and/or the Certificateholders, the Servicer shall forward a copy of
such Investor Inquiry to the Special Servicer and notify the Special Servicer of
its determination. The Special Servicer shall notify the Servicer within two
Business Days of receipt of such determination if it agrees or disagrees with
the Servicer's determination. If the Special Servicer disagrees with the
Servicer's determination, the Servicer shall not answer such Investor Inquiry
and shall promptly notify the Certificate Administrator, which shall notify the
Person who submitted such Investor Inquiry. If the Special Servicer fails to
respond within such two Business Day period, the Special Servicer shall be
deemed to agree with the Servicer's determination. Within one Business Day
following the Special Servicer's agreement or deemed agreement with the
Servicer's determination (with respect to Investor Inquiries that relate to
Loans that are not Specially Serviced Loans) or within two Business Days
following receipt of an Investor Inquiry from the Certificate Administrator by
the Special Servicer (with respect to Specially Serviced Loans), the Servicer or
the Special Servicer, respectively, shall reply to the Investor Inquiry with (A)
the answer to such Investor Inquiry, or (B) if such Investor Inquiry cannot
reasonably be answered within such one Business Day, such longer period of time
as is necessary to answer such Investor Inquiry, provided such longer period of
time shall be commercially reasonable (which it shall then be required to adhere
to). Upon receipt of any such answer from the Servicer or the Special Servicer,
the Certificate Administrator shall post (within 4 Business Hours of receipt of
such answer) such Investor Inquiry and the related answer (or a statement
concerning the additional time necessary until such answer shall be made
available) to the Website. If the Servicer or the Special Servicer determines,
in its respective sole discretion, that answering any Investor Inquiry would not
be in the best interests of the Trust and/or the Certificateholders, it shall
not be required to answer such Investor Inquiry, and shall promptly notify the
Certificate Administrator, who shall notify the Person who submitted such
Investor Inquiry.
The Servicer and the Special Servicer shall not be required to
confirm, represent or warrant the accuracy or completeness of any other Person's
information or report included in any communication from the Servicer or the
Special Servicer under this Agreement.
In addition, the Certificate Administrator shall make available to
any Privileged Person, via the Website, the Special Events Bulletin. The
"Special Events Bulletin" shall list all of the events for which the Certificate
Administrator receives notice from the Servicer (with respect to Loans that are
not Specially Serviced Loans) or the Special Servicer (with respect to Loans
that are Specially Serviced Loans or with respect to Special Events described in
(vi) and (vii) below) that such event occurred and constitutes a Special Event,
together with the date such Special Event has occurred. The following shall
constitute "Special Events":
(i) any notice from a Borrower or insurance company, or any
knowledge otherwise obtained, regarding a prepayment, material casualty or
condemnation or, upon completion of any defeasance, defeasance of all or
part of the related Loan (provided that a request by a Borrower or other
Person for a quotation of the amount necessary to satisfy all obligations
with respect to a Loan shall not, in and of itself, be deemed to be such
notice);
(ii) the status of capital improvement (i.e., work has commenced,
work is underway or work is completed) having a cost of $1,000,000 or more
required under the Loan Documents, including information on the balance of
the related reserves;
(iii) the results of any property inspection of which the
Servicer or Special Servicer has knowledge and which has revealed any
material damage or deterioration or the presence of any material
environmental condition with respect to any Mortgaged Property;
(iv) any notice from a Borrower, or any knowledge otherwise
obtained, regarding any judgment against such Borrower or involving any
Mortgaged Property which the Servicer deems to be a Servicing Transfer
Event or which the Special Servicer reasonably believes is likely to have
an adverse effect on such Mortgaged Property or the ability of such
Borrower to pay the amounts due under the related Loan;
(v) any notice received from a Borrower, Manager or tenant of a
Mortgaged Property, or any knowledge otherwise obtained, regarding the
material default of such tenant under the terms of its lease or early
termination by either any tenant that (A) leases more than 20% of the
gross leasable area and (B) the absence of such tenant would result in a
DSCR less than 1.25x or the Borrower of such lease, the bankruptcy of such
tenant or its direct or indirect parent, or the loss of a license or
permit of such tenant relating to any Mortgaged Property;
(vi) any amendment, modification or waiver of a material
provision of a Loan of which the Special Servicer has knowledge, provided
that the Special Servicer need not disclose the nature of any asset
strategy or proposed modifications in connection with a work-out or
resolution of a Specially Serviced Loan;
(vii) any change in the ownership of a Borrower or Mortgaged
Property or request for consent to an assumption of a Loan;
(viii) any material lien being recorded on a Mortgaged Property
if such recordation is a Servicing Transfer Event;
(ix) the results of any Appraisal or other valuation performed
with respect to a Mortgaged Property;
(x) such other information as the Servicer or Special Servicer
elects to present, such as information regarding leasing activities in the
market any anchor space (which, for such purposes, shall be space
comprising more than 15% of the gross leasable area), new developments,
net absorption and market vacancy rates, rents and expenses; and
(xi) any event designated as such by the Depositor.
The Certificate Administrator shall list the occurrence of any
Special Event on the Website promptly upon receipt of notice from the Servicer
or Special Servicer, but no later than the next scheduled Distribution Date.
The Certificate Administrator shall not be liable for the
dissemination of information in accordance with this Section 4.02(b). The
Certificate Administrator makes no representations or warranties as to the
accuracy or completeness of any report, document, questions, answer, special
event, or other information made available on the Website and assumes no
responsibility therefor. In addition, the Certificate Administrator may disclaim
responsibility for any information distributed by the Certificate Administrator
for which it is not the original source.
In connection with providing access to the Website, the Certificate
Administrator may require registration and the acceptance of a disclaimer.
(c) The Trustee shall make available at its offices, during normal
business hours, upon not less than ten Business Days' prior written notice, for
review by any Certificateholder, any prospective investor in a Certificate, the
Depositor, the Certificate Administrator, the Servicer, the Special Servicer,
any Rating Agency and any other Person to whom the Depositor believes such
disclosure is appropriate, originals or copies of documents relating to the
Loans and any related REO Properties to the extent in its possession, including,
without limitation, the following items (except to the extent prohibited by
applicable law or by the terms of any of the Mortgage Documents): (i) this
Agreement and any amendments thereto; (ii) all Statements to Certificateholders
delivered to the Certificateholders since the Closing Date; (iii) all annual
Officers' Certificates and all accountants' reports delivered by the Servicer or
Special Servicer to the Trustee since the Closing Date regarding compliance with
the relevant agreements; (iv) any and all Officers' Certificates and other
evidence delivered to or by the Certificate Administrator to support the
Servicer's or the Trustee's, as the case may be, determination that any Advance,
if made, would be a Nonrecoverable Advance; and (v) any other materials not
otherwise required to be provided to a requesting Certificateholder pursuant to
this Agreement, in situations where such requesting Certificateholder declined
to enter into a confidentiality agreement with the Servicer. The Custodian shall
make available at its offices, during normal business hours, upon not less than
ten Business Days' prior written notice, for review by any Certificateholder,
any prospective investor in a Certificate, the Depositor, the Trustee, the
Certificate Administrator, the Servicer, the Special Servicer, any Rating Agency
and any other Person to whom the Depositor believes such disclosure is
appropriate, originals or copies of any and all modifications, waivers and
amendments of the terms of a Loan entered into by the Servicer and/or the
Special Servicer and delivered to the Certificate Administrator. The Servicer
shall cooperate with the Trustee to make any of the above-mentioned items
available to any Certificateholder upon its request and payment by it of
reasonable costs. Copies of any and all of the foregoing items will be available
from the Trustee or the Custodian, as applicable, upon written request therefor.
The Trustee or the Custodian, as applicable, will be permitted to require
payment by the requesting party (other than a Rating Agency) of a sum sufficient
to cover the reasonable costs and expenses of making such information available
and providing any copies thereof. The Trustee's and Custodian's obligation under
this Section 4.02(c) to make available any document is subject to the Trustee's
and Custodian's receipt of such document.
(d) Notwithstanding the foregoing provisions of this Article 4.02,
the Certificate Administrator shall not be required to provide the full
reporting provided for in Sections 4.02(b) and (c) unless and until the Servicer
provides its related reporting to the Certificate Administrator in CMSA format.
(e) The Servicer and the Special Servicer shall not be required to
conduct research or obtain information that is not available to the Servicer or
the Special Servicer, respectively, in the ordinary course of its servicing
activities hereunder. In addition, the Servicer and the Special Servicer shall
not be required to (i) answer commercially unreasonable questions, (ii) answer
questions relating to matters that extend beyond the scope of its duties as
Servicer or Special Servicer, respectively, (iii) answer questions that would,
in the Servicer's or the Special Servicer's sole discretion, require the
Servicer or the Special Servicer to devote an unreasonable amount of time or
resources to answer, (iv) disclose information that would violate the terms of
any of the Loan Documents or initiate contact with Mortgagors or third parties
except in connection with the ordinary course of its servicing duties hereunder
or (v) express opinions or make recommendations under this Section 4.02(b) (it
being understood that the Servicer and the Special Servicer may limit their
responses to factual matters). The provision of information hereunder by the
Servicer and the Special Servicer shall be subject to Section 3.27(d) and
Section 3.27(f), as applicable.
Section 4.03 P&I Advances; Yield Protection Payment Advances.
(a) On or before 3:00 p.m. New York City time on each P&I Advance
Date, the Servicer shall (i) deposit into the Distribution Accounts from its own
funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Collection Account that are not required to be part of the Available
Distribution Amount for such Distribution Date or (iii) make P&I Advances in the
form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made. Any amounts held in the Collection Account not required to
be a part of the Available Distribution Amount for such Distribution Date and so
used to make P&I Advances shall be appropriately reflected in the Servicer's
records and replaced by the Servicer by deposit in the Collection 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 Certificate Administrator by a
certificate of the Servicing Officer of (i) the aggregate amount of P&I Advances
for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances
for such Distribution Date, on or before the Servicer Remittance Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Primary Servicing Fees, Servicing Fees and Workout Fees, if any), other
than Balloon Payments, that were due during any related Due Period and
delinquent as of the close of business on the Business Day preceding the related
P&I Advance Date (or not advanced by any Sub-Servicer on behalf of the
Servicer); and (ii) with respect to each Loan as to which the related Balloon
Payment was due during or prior to the related Due Period and was delinquent as
of the end of the related Due Period (including any REO Loan as to which the
Balloon Payment would have been past due), an amount equal to the Assumed
Scheduled Payment therefor. All P&I Advances for any Loan that have been
modified shall be calculated on the basis of their terms as modified. Subject to
subsection (c) below, the obligation of the Servicer to make such P&I Advances
is mandatory and, with respect to any Loan or REO Loan, shall continue until the
Distribution Date on which the proceeds, if any, received in connection with a
Liquidation Event with respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, neither the
Servicer nor the Trustee shall be required to make a P&I Advance, if the
Servicer or the Trustee determines, in accordance with the definition thereof,
that any such P&I Advance would be a Nonrecoverable Advance. The Trustee may
conclusively rely on any determination of nonrecoverability by the Servicer. The
Special Servicer shall not be required to make P&I Advances under this
Agreement. On the fourth Business Day before each Distribution Date, the Special
Servicer shall report to the Servicer the Special Servicer's determination as to
whether each P&I Advance made with respect to any previous Distribution Date or
required to be made with respect to such Distribution Date with respect to any
Specially Serviced Loan or REO Loan is a Nonrecoverable P&I Advance. The
Servicer shall be entitled to conclusively rely on (but shall not be bound by)
such determination.
(d) In connection with the recovery of any P&I Advance out of the
Collection Account pursuant to Section 3.05(a), the Servicer shall be entitled
to pay itself or the Trustee, as the case may be, out of any amounts then on
deposit in the Collection Account, interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of such P&I Advance from the date made
to but not including the date of reimbursement. The Servicer shall reimburse
itself or the Trustee, as the case may be, for any outstanding P&I Advance as
soon as practicably possible after funds available for such purpose are
deposited in the Collection Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall be required or permitted to make an advance for Penalty Charges,
Prepayment Premiums, Yield Maintenance Charges, Balloon Payments or Excess
Interest, (ii) the amount required to be advanced in respect of delinquent
Monthly Payments and Assumed Scheduled Payments on any Loan that has been
subject to an Appraisal Reduction will equal, with respect to any Distribution
Date, the amount that would be required to be advanced by the Servicer without
giving effect to the Appraisal Reduction, less the Appraisal Reduction Amount,
for such Distribution Date, and (iii) if the monthly payment on any Loan has
been reduced or the final maturity extended, in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
and the monthly payment due and owing during the extension period is less than
the amount of the Monthly Payments prior to such modification, then the Servicer
shall, as to such Loan only, advance only the amount of the Monthly Payment due
and owing after taking into account such reduction (net of related Primary
Servicing Fees, Servicing Fees and Workout Fees), in the event of subsequent
delinquencies thereon.
(f) Upon receipt of notice of a Residual Value Policy Termination
Event, the Servicer shall:
(i) Maintain a record of all payments by the related Residual
Value Insurer (the aggregate amount already paid at such time, together
with all subsequent payments made from time to time thereafter, under the
Residual Value Policy, the "Residual Value Policy Exposure").
(ii) Make no P&I Advance with respect to the related Loan to the
extent that such P&I Advance, taking into account any Residual Value
Policy Exposure, would constitute a Nonrecoverable P&I Advance.
(iii) Upon determination that, with respect to such Loan, any P&I
Advance (or portion thereof) relating to a payment (or portion thereof) by
the Residual Value Policy Insurer, taking into account the Residual Value
Policy Exposure, constituted a Nonrecoverable Advance, deposit into an
account (the "Policy Escrow Account") established and maintained by the
Servicer as an Eligible Account all payments made under the related
Residual Value Policy after the date of such determination until the date
on which ultimate responsibility (as between the Trust Fund and the
Residual Value Policy Insurer) for payments with respect to such Lease
Enhancement Policy Termination Event is finally resolved. Amounts
deposited in the Policy Escrow Account shall be invested in Permitted
Investments selected by the Servicer pursuant to Section 3.06.
(iv) If any payment (or portion thereof) made by any Residual
Value Insurer is subsequently determined, in accordance with the dispute
resolution procedures set forth in the related Residual Value Policy or
pursuant to any legal process or settlement by the Special Servicer of any
claim by such Residual Value Insurer, to be reimbursable to the Residual
Value Insurer, (a) remit to such Residual Value Insurer the amount on
deposit in the Policy Escrow Account (up to the amount owed to the
Residual Value Insurer), (b) make a P&I Advance of any remaining amount
owed to the Residual Value Insurer and (c) promptly pay the amount of such
P&I Advance to such Residual Value Insurer under the Residual Value Policy
with respect to such Residual Value Policy Termination Event. If such P&I
Advance is determined to be a Nonrecoverable P&I Advance, the Servicer
shall nevertheless make such P&I Advance to the related Residual Value
Insurer to reimburse it for amounts paid out under the Residual Value
Policy as provided above, but the Servicer shall be entitled to
immediately reimburse itself from general funds available in the
Collection Account for such P&I Advance as a Nonrecoverable Advance. If
such P&I Advance is not determined to be a Nonrecoverable P&I Advance, the
Servicer shall be repaid therefor out of the proceeds of the related Loan.
(v) If any payment (or portion thereof) made by such Residual
Value Insurer and deposited into the Policy Escrow Account is subsequently
determined to have been properly payable to the Trust Fund, then the
Servicer shall deposit into the Collection Account the amount on deposit
in the Policy Escrow Account (net of any interest and investment income
realized on funds on deposit therein that, pursuant to Section 3.06(a), is
to be applied to pay interest on Advances made with respect to, or other
expenses of the Trust Fund allocable to, the related Loan), together with
any payments in the nature of damages relating to non-payment under such
Residual Value Insurance Policy, as recoveries with respect to such Loan.
(g) With respect to each Due Period, if any, in which Additional
Collateral Prepayment Amounts are paid pursuant to the terms of one or more
Additional Collateral Loans, the Servicer shall make an advance to the Yield
Protection Payment Account on the related Servicer Remittance Date in an amount
equal to the aggregate Yield Protection Payments, if any, for the related
Distribution Date (such advance, a "Yield Protection Payment Advance"). The
Servicer's obligation to make Yield Protection Payment Advances shall be in
consideration for, and conditioned upon, the CSFB Mortgage Loan Seller's
agreement to reimburse the Servicer therefor pursuant to the applicable
agreement between the Servicer and the CSFB Mortgage Loan Seller. In no event
shall the Servicer be entitled to reimbursement from the Trust Fund or the MS
Mortgage Loan Seller for any Yield Protection Payment Advance.
Section 4.04 Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Certificate Administrator shall calculate the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Loans and any REO Loans expected to be
outstanding immediately following such Distribution Date is less than (ii) the
then aggregate Certificate Balance of the Regular Certificates after giving
effect to distributions of principal on such Distribution Date and the
allocation of Certificate Deferred Interest pursuant to Section 4.06 (any such
deficit, the "Collateral Support Deficit"). Any allocation of Collateral Support
Deficit to a Class of Regular Certificates shall be made by reducing the
Certificate Balance thereof by the amount so allocated. Any Collateral Support
Deficit allocated to a Class of Regular Certificates shall be allocated among
the respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. The allocation of Collateral Support Deficit shall
constitute an allocation of losses and other shortfalls experienced by the Trust
Fund. Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates in
respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution to the extent of any
Collateral Support Deficit, if any, allocable to such Certificates with respect
to such Distribution Date. Such reductions shall be allocated among the
respective Certificates as follows: first, to the Class O Certificates; second,
to the Class N Certificates; third, to the Class M Certificates; fourth, to the
Class L Certificates; fifth, to the Class K Certificates; sixth, to the Class J
Certificates; seventh, to the Class H Certificates, eighth, to the Class G
Certificates, ninth, to the Class F Certificates, tenth, to the Class E
Certificates, eleventh, to the Class D Certificates, twelfth, to the Class C
Certificates, and thirteenth, to the Class B Certificates, in each case, until
the remaining Certificate Balance of each such Class of Certificates has been
reduced to zero. Following the reduction of the Certificate Balances of all such
Classes to zero, any remaining Collateral Support Deficit shall be allocated
among the Class A-1 and Class A-2 Certificates, pro rata (based upon the
Certificate Balance of each such Class), until the remaining Certificate
Balances of such Classes have been reduced to zero. Any Collateral Support
Deficit allocated to a Class of Certificates will be allocated among respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amounts
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off.
Section 4.05 Appraisal Reductions.
The aggregate Appraisal Reductions will be allocated by the
Certificate Administrator on each Distribution Date to the Certificate Balance
of the Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C and Class B Certificates, in that order, up
to the amount of their respective Certificate Balances, for purposes of
determining (x) the amount of P&I Advances with respect to the related Loans,
(y) Voting Rights and (z) the identity of the Controlling Class. On any
Distribution Date, an Appraisal Reduction that otherwise would be allocated to a
Class of Certificates shall be allocated to the next most subordinate Class to
the extent that the Certificate Balance on such Distribution Date for such Class
of Certificates (prior to taking the Appraisal Reduction into account) is less
than the Appraisal Reduction for such Distribution Date.
By 4:00 p.m., New York City time, on the third Business Day
immediately preceding each Distribution Date with respect to which one or more
Appraisal Reductions exist, the Servicer shall notify the Certificate
Administrator in writing of such Appraisal Reductions and by the close of
business of the second Business Day immediately preceding each such Distribution
Date, the Certificate Administrator shall identify to the Servicer in writing
each Class of Subordinate Certificates to which one or more Appraisal Reductions
shall be allocated on such Distribution Date, the applicable Pass-Through Rate
of each such Class, and the amount of Appraisal Reductions allocated to each
such Class.
Section 4.06 Certificate Deferred Interest.
(a) On each Distribution Date, the Monthly Interest Distribution
Amount for the Regular Certificates (other than the Class A-X Certificates)
shall be reduced by an amount of Certificate Deferred Interest equal to the
aggregate amount of Mortgage Deferred Interest for all Loans for the related Due
Date allocated to such Class of Certificates, the amount representing such
Certificate Deferred Interest to be allocated, to the Class O Certificates, to
the Class N Certificates, to the Class M Certificates, to the Class L
Certificates, to the Class K Certificates, to the Class J Certificates, to the
Class H Certificates, to the Class G Certificates, to the Class F Certificates,
to the Class E Certificates, to the Class D Certificates, to the Class C
Certificates and to the Class B Certificates, in that order. If the Certificate
Balance of at least one Class of Class A Certificates is not zero, then any
amounts representing Certificate Deferred Interest after allocation thereof to
the Subordinate Certificates in accordance with the preceding sentence will be
allocated to the Class A Certificates pro rata on the basis of the respective
interest entitlements of such Class on such date (before giving effect to any
reduction therefrom on such Distribution Date).
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N and Class O Certificates shall be
increased (except for the purposes of determining Voting Rights or the identity
of the Controlling Class) by the amount of the Certificate Deferred Interest
allocated to such Class of Certificates on such Distribution Date pursuant to
Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto. On each Distribution Date, to the extent provided in Section
4.06(b), Certificate Deferred Interest will be added to the Lower-Tier Principal
Amount of the Uncertificated Lower-Tier Interests in the same manner as the
interest thereon was reduced pursuant to the preceding sentence.
Section 4.07 Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of
Excess Interest, the Excess Interest Distribution Account, Yield Protection
Payments and the Yield Protection Payment Account shall constitute, and that the
affairs of the Trust Fund (exclusive of the Upper-Tier REMIC and the Lower-Tier
REMIC) shall be conducted so as to qualify such portions as, a "grantor trust"
under the Code, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Certificate Administrator
(i) shall furnish or cause to be furnished to Class V-1 and Class V-2
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income relating to their share
of Excess Interest and, at the time or times and in the manner required by the
Code and (ii) shall furnish or cause to be furnished to the Class A-X
Certificateholders and to the Holders of any Class of Regular Certificates
receiving a Class A-X Yield Protection Payment Amount or a Regular Yield
Protection Payment Amount, respectively, and shall file, or cause to be filed
with the Internal Revenue Service together with Form 1041 or such other form as
may be applicable, information returns with respect to income relating to their
applicable share of Yield Protection Payments at the time or times and in the
manner required by the Code. The Yield Protection Payments shall be treated as
part of a grantor trust for federal income tax reporting purposes.
<PAGE>
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Private Certificates will be offered only to Qualified
Institutional Buyers. The Class G and Class H Certificates will be offered only
to Qualified Institutional Buyers and Non-U.S. Persons. The Class O Certificates
will be offered only to Qualified Institutional Buyers and Institutional
Accredited Investors. Interests in the Class G and Class H Certificates will be
offered (i) in the form of beneficial interests in restricted global
certificates in definitive, fully registered form without interest coupons,
deposited with the Certificate Administrator, as custodian for DTC, and
registered in the name of Cede & Co. ("Cede") DTC's nominee or (ii) in fully
registered, certificated form. The Class J, Class K, Class L, Class M, Class N
and Class O Certificates will be offered in fully registered, certificated form.
Class G Certificates and Class H Certificates sold in reliance on
Rule 144A under the Securities Act will be represented by one or more Private
Global Certificates (each, a "Rule 144A Global Certificate"). Class G
Certificates and Class H Certificates sold in reliance on Regulation S under the
Securities Act will be represented by one or more Private Global Certificates
(each, a "Regulation S Global Certificate"). Beneficial interests in a
Regulation S Global Certificate may be held only through Euroclear or Cedelbank
at any time and may not be held by a U.S. Person at any time.
(b) The Certificates shall be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-7. The Certificates shall
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in the Regular Certificates (other
than the Private Definitive Certificates) shall initially be held and
transferred through the book-entry facilities of the Depository. The Class V-1,
Class V-2, Class R and Class LR Certificates, and all Private Definitive
Certificates, shall be issuable as Definitive Certificates. Each Certificate
shall share ratably in all rights of the related Class.
The Class A-X Certificates shall be issuable only in Denominations
of authorized initial Notional Balance of not less than $100,000 and integral
multiples of $1 in excess thereof. The Class O Certificates shall be issuable
only in Denominations of authorized initial Certificate Balance of not less than
$100,000 and integral multiples of $1 in excess thereof. The Regular
Certificates (other than the Class A-X Certificates and Class O Certificates)
will be issuable only in Denominations of authorized initial Certificate Balance
of not less than $25,000 and integral multiples of $1 in excess thereof. The
Class V-1, Class V-2, Class R and Class LR Certificates will be issuable only as
one or more Definitive Certificates in Denominations representing Percentage
Interests of not less than 15%.
With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount set forth on the
face thereof or on a schedule attached thereto, (ii) in the case of any
beneficial interest in a Book-Entry Certificate, the interest of the related
Certificate Owner in the applicable Class of Certificates as reflected on the
books and records of the Depository or related Depository Participants, as
applicable, (iii) expressed in terms of initial Certificate Balance or initial
Notional Balance, as applicable, and (iii) 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 above.
The Holder of a Class G or Class H Certificate represented by a
Private Definitive Certificate shall be entitled to exchange such Certificate
for an interest in a Private Global Certificate, in accordance with the
procedures described in Section 5.03(g). A Certificate Owner of a Private Global
Certificate shall be entitled to receive a Definitive Certificate representing
its interest in such Certificate in accordance with the procedures described in
Section 5.03(c)(i). No Certificate Owner of a Public Certificate of any Class
shall be entitled to receive a Definitive Certificate representing its interest
in such Class, except as provided in Section 5.03(c)(ii). Unless and until
Definitive Certificates are issued in respect of a Class of Public Certificates,
or in substitution for a Certificate that is a Private Global Certificate,
beneficial ownership interests in such Class of Certificates, or in such Private
Global Certificate, shall be maintained and transferred on the book-entry
records of the Depository and Depository Participants, and all references to
actions by Holders of such Class of Certificates, or Holders of such Private
Global Certificates, shall be references to actions taken by the Depository upon
instructions received from the related registered Holders of Certificates
through the Depository Participants in accordance with the Depository's
procedures and, except as otherwise set forth herein, all references herein to
payments, notices, reports and statements to Holders of such Class of
Certificates, or Holders of Private Global Certificates, shall be references to
payments, notices, reports and statements to the Depository or its nominee as
the registered Holder thereof, for distribution to the related registered
Holders of Certificates through the Depository Participants in accordance with
the Depository's procedures.
(c) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. The Certificate
Administrator is hereby initially appointed Authenticating Agent with power to
act on the Trustee's behalf in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
the Authenticating Agent resigns or is terminated, the Trustee shall appoint a
successor Authenticating Agent which may be the Trustee or an Affiliate thereof.
(d) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
(e) If the Trust Fund ceases to be subject to Section 13 or 15(d) of
the Exchange Act, the Trustee shall make available to each Holder of a Class R
or Class LR Certificate, upon request of such a Holder, information
substantially equivalent in scope to the information currently filed by the
Trustee with the Commission pursuant to the Exchange Act, plus such additional
information required to be provided for securities qualifying for resales under
Rule 144A under the Act.
For so long as the Class R or Class LR Certificates remain
outstanding, neither the Depositor nor the Trustee nor the Certificate Registrar
shall take any action which would cause the Trust Fund to fail to be subject to
Section 15(d) of the Exchange Act.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Certificate Administrator is hereby initially appointed Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Trustee, the
Special Servicer and the Servicer, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment.
If Norwest Bank Minnesota, National Association, resigns as
Certificate Registrar, the entity succeeding Norwest Bank Minnesota, National
Association, as Certificate Administrator shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Trustee, the
Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners.
The Person in whose name any Certificate is so registered shall be
deemed and treated as the sole owner and Holder thereof for all purposes of this
Agreement and the Certificate Registrar, the Servicer, the Trustee, the Special
Servicer and any agent of any of them shall not be affected by any notice or
knowledge to the contrary. A Definitive Certificate is transferable or
exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at its office maintained at Norwest Center, Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust Services
(CMBS) - CSFB 1999-C1, 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 authenticate in the name of the
designated transferee or transferees, in the case of a Definitive Certificate
being surrendered in exchange for one or more new Definitive Certificates, one
or more new Certificates in Denominations equal in the aggregate to the
Denomination of the Definitive Certificate being surrendered. Such new
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e).
Each Certificate surrendered for registration of transfer shall be
canceled, and the Certificate Registrar shall hold such canceled Certificate in
accordance with its standard procedures.
(b) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer (other than one by the Depositor to
an Affiliate thereof) of a Private Certificate is to be made in reliance upon an
exemption from the Securities Act, and under the applicable state securities
laws, then either:
(i) the Certificate Registrar shall require the transferee to
deliver to the Certificate Registrar an investment representation letter
substantially in the form of Exhibit C-1 attached hereto (a "QIB
Investment Representation Letter"), which shall certify, among other
things, that the transferee is a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act (a "Qualified Institutional
Buyer"); or
(ii) with respect to the Class G and Class H Certificates only,
the Certificate Registrar shall require the transferee to deliver to the
Certificate Registrar an investment representation letter substantially in
the form of Exhibit C-2 attached hereto (a "Regulation S Investment
Representation Letter"), which will certify, among other things, that the
transferee is not a "U.S. Person" within the meaning of Regulation S under
the Securities Act; or
(iii) with respect to the Class O Certificates only, the
Certificate Registrar shall require the transferee to deliver to the
Certificate Registrar an investment representation letter substantially in
the form of Exhibit C-3 attached hereto, which shall certify, among other
things, that the transferee is an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (an
"Institutional Accredited Investor") and is acquiring such Private
Certificate for investment, either for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others
also are Accredited Investors), and not with a view to, or for offer or
sale in connection with, the public distribution thereof.
If the certification described in the preceding clause (i) cannot be
provided, (a) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from registration or qualification under the
Securities Act, applicable state securities laws and other relevant laws, which
Opinion of Counsel shall not be at the expense of the Trust Fund, the
Certificate Registrar, the Depositor or the Trustee and (b) the Certificate
Registrar shall require the transferor (other than the Underwriters, in
connection with its initial transfer of the Certificate being transferred) to
execute a certification in form and substance satisfactory to the Certificate
Registrar setting forth the facts surrounding such transfer; provided, however,
that a transfer of a Private Certificate of any such Class may be made to a
trust if the transferor provides to the Certificate Registrar and to the Trustee
a certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02.
The Servicer shall furnish to the Certificate Administrator, which
shall furnish, or cause to be furnished, upon the request of any Holder of a
Private Certificate, any such information as is specified in paragraph (d)(4) of
Rule 144A with respect to the Trust Fund, unless, at the time of such request,
the entity with respect to which such information is to be provided is subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act. None
of the Depositor, the Trustee, the Servicer or the Certificate Registrar is
obligated to register or qualify any Class of Private 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 Private Certificate
without registration or qualification. Any Holder of a Private Certificate
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Trustee, the Servicer and the Certificate Registrar against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. Unless the Certificate Registrar
determines otherwise in accordance with applicable law and the rules and
procedures of, or applicable to, the Depository (the "Depository Rules"),
transfers of a beneficial interest Private Global Certificate that is not rated
in one of the top four rating categories by a nationally recognized statistical
rating organization may be effectuated only by means of an "SRO Rule 144A
System" approved for such purpose by the Commission.
No Class V-1 Certificate may be transferred to an Ineligible Class
V-1 Owner. No Class V-2 Certificate may be transferred to an Ineligible Class
V-2 Owner.
(c) (3) Unless a Class of Private Global Certificates has been
registered under the Securities Act, each Certificate of such Class shall bear a
legend substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO
A PERSON WHO IS NOT A "U.S. PERSON" AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT, (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH
OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER
REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT, AND
SUCH HOLDER SHALL, AND EACH SUBSEQUENT PURCHASER IS REQUIRED TO
NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND
SERVICING AGREEMENT AND SHALL ALSO BE REQUIRED TO DELIVER AN OPINION
OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A AND IT IS A U.S. PERSON WITHIN THE
MEANING OF RULE 902 UNDER REGULATION S.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A)
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL STATE OR
LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A COLLECTIVE
INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN,
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM SET
FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR (II)
IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR
(B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY
NOT BE TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH
AN ENTITY SUCH ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE ADMINISTRATOR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN
WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS
OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON
BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH
INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY
WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN
THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE,
OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
(d) (4) Unless a Class of Private Definitive Certificates has been
registered under the Securities Act, each Certificate of such Class shall bear a
legend substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, 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 ADMINISTRATOR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
[WITH RESPECT TO THE CLASS V-1 CERTIFICATES ONLY:] THE HOLDER OF
THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH CERTIFICATE TO ANY PERSON THAT IS AN
"INELIGIBLE CLASS V-1 OWNER" (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
[WITH RESPECT TO THE CLASS V-2 CERTIFICATES ONLY:] THE HOLDER OF
THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH CERTIFICATE TO ANY PERSON THAT IS AN
"INELIGIBLE CLASS V-2 OWNER" (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER
REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT, AND
SUCH HOLDER SHALL, AND EACH SUBSEQUENT PURCHASER IS REQUIRED TO
NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND
SERVICING AGREEMENT AND SHALL ALSO BE REQUIRED TO DELIVER AN OPINION
OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A)
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL STATE OR
LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A COLLECTIVE
INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN,
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM SET
FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR (II)
IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR
(B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY
NOT BE TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH
AN ENTITY SUCH ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE ADMINISTRATOR THAT THE
PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN
WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS
OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE CERTIFICATE
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON
BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH
INTEREST, OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY
WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN
THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE,
OR A MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
(e) With respect to any Certificate other than a Class A Certificate
or a Class A-X Certificate, no sale, transfer, pledge or other disposition by
any Holder of any such Certificate shall be made unless the Certificate
Registrar shall have received either (i) a representation letter from the
proposed purchaser or transferee of such Certificate to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or Section 4975 of the Code, or
a governmental plan (as defined in Section 3(32) of ERISA) subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than (except in the case of a Class R or Class LR
Certificate) an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be eligible for the exemptive relief from the prohibited
transaction provisions of ERISA and Section 4975 of the Code that is available
under Sections I and III of Prohibited Transaction Class Exemption 95-60 (it
being understood that delivery of a representation letter containing a
representation substantially in the form of paragraph 8 of Exhibit C attached
hereto shall satisfy the requirement of this Section 5.02(d)(i)), or (ii) if
such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Trustee, the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
prohibited transaction under ERISA, Section 4975 of the Code or any Similar Law
and will not subject the Trustee, the Certificate Registrar, the Servicer, the
Special Servicer, the Underwriters, the Initial Purchaser or the Depositor to
any obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any Similar Law) in addition to those set forth in
the Agreement.
The Certificate Registrar shall not register the sale, transfer,
pledge or other disposition of any such Certificate unless the Certificate
Registrar has received either the representation letter described in clause (i)
above or the Opinion of Counsel described in clause (ii) above. The costs of any
of the foregoing representation letters or Opinions of Counsel shall not be
borne by any of the Depositor, the Servicer, the Special Servicer, the
Certificate Registrar, the Trustee and the Trust Fund. Each Certificate Owner of
a Certificate other than a Class A or Class A-X Certificate shall be deemed to
represent that it is not a Person specified in clauses (a), or (b) above. Any
transfer, sale, pledge or other disposition of any such Certificates that would
constitute or result in a prohibited transaction under ERISA, Section 4975 of
the Code or any Similar Law, or would otherwise violate the provisions of this
Section 5.02(c) shall be deemed absolutely null and void ab initio, to the
extent permitted under applicable law.
So long as any Class of Certificates other than the Class A and
Class A-X Certificates remains outstanding, the Servicer will make available, or
cause to be made available, upon written request with sufficient notice during
normal business hours, to any Holder and any Person to whom any such Certificate
of any such Class of Certificates may be offered or sold, transferred, pledged
or otherwise disposed of by such Holder, information with respect to the
Servicer, the Special Servicer or the Loans reasonably necessary to the
provision of an Opinion of Counsel described in this Section 5.02(c).
(f) Notwithstanding any provision to the contrary herein, so long as
a Private Global Certificate remains outstanding and is held by or on behalf of
DTC, transfers of a Private Global Certificate, in whole or in part, shall only
be made in accordance with this Article V.
(i) Regulation S Global Certificate to Rule 144A Global
Certificate. If a holder of a beneficial interest in a Regulation S Global
Certificate deposited with DTC wishes at any time to transfer its interest
in such Regulation S Global Certificate to a Person who wishes to take
delivery thereof in the form of a Rule 144A Global Certificate, such
holder may, subject to the rules and procedures of Euroclear, Cedelbank or
DTC, as the case may be, exchange or cause the exchange of such interest
for an equivalent beneficial interest in a Rule 144A Global Certificate.
Upon receipt by the Certificate Administrator, as custodian for DTC, of
(A) instructions from Euroclear, Cedelbank or DTC, as the case may be,
directing the Certificate Administrator, as such custodian, to cause to be
issued a Rule 144A Global Certificate in an amount equal to the beneficial
interest in such Regulation S Global Certificate, but not less than the
minimum denomination applicable to such holder's Certificates to be
exchanged, and (B) a certificate in the form of Exhibit C-1 attached
hereto given by the holder of such beneficial interest and stating, among
other things, that the Person transferring such beneficial interest in
such Regulation S Global Certificate reasonably believes that the Person
acquiring such interest in a Rule 144A Global Certificate is a qualified
institutional buyer within the meaning of Rule 144A, is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A
and in accordance with any applicable Securities laws of any State of the
United States or any other applicable jurisdiction and that such Person
acquiring such Rule 144A Global Certificate is a "U.S. person" as defined
in Regulation S under the Securities Act, then Euroclear or Cedelbank or
the Certificate Administrator, as custodian for DTC, as the case may be,
will instruct the Certificate Administrator, as custodian for DTC, to
reduce the Regulation S Global Certificate by the aggregate principal
amount of the Rule 144A Global Certificate to be transferred and the
Certificate Administrator, as such custodian, shall authenticate and
deliver such Rule 144A Global Certificate, concurrently with such
reduction, to the Person specified in such instructions with an
outstanding principal amount equal to the reduction in the principal
amount of the Regulation S Global Certificate.
(ii) Rule 144A Global Certificate to Regulation S Global
Certificate. If a holder of a beneficial interest in one or more Rule 144A
Global Certificates wishes at any time to exchange its interest in such
Rule 144A Global Certificate for an interest in a Regulation S Global
Certificate, or to transfer its interest in such Rule 144A Global
Certificate to a Person who wishes to take delivery thereof in the form of
an interest in a Regulation S Global Certificate, such holder, provided
such holder is not a U.S. Person, may exchange or cause the exchange of
such interest for an equivalent beneficial interest in a Regulation S
Global Certificate. Upon receipt by the Certificate Administrator, as
custodian for DTC, of (A) such Rule 144A Global Certificate properly
endorsed for such transfer and written instructions from such holder
directing the Certificate Administrator, as such custodian, to cause to be
credited a beneficial interest in a Regulation S Global Certificate in an
amount equal to the beneficial interest in the Rule 144A Global
Certificate, but not less than the minimum denomination applicable to such
holder's Certificates held through a Regulation S Global Certificate, to
be exchanged, (B) a written order containing information regarding the
Euroclear or Cedelbank account to be credited with such increase and (C) a
certificate in the form of Exhibit C-2 attached hereto given by the holder
of such beneficial interest stating that the exchange or transfer of such
interest has been made in compliance with the transfer restrictions
applicable to the Private Global Certificates, including that the holder
is not a U.S. Person, and pursuant to and in accordance with Regulation S
under the Securities Act, the Certificate Administrator, as custodian for
DTC, shall record the transfer in the Registrar Office and shall increase
the principal amount of the Regulation S Global Certificate by the
outstanding principal amount of the beneficial interest in the Rule 144A
Global Certificate to be exchanged, and to credit, or cause to be credited
to the account of the Person specified in such instructions, a beneficial
interest in the Regulation S Global Certificate equal to the amount
specified in the instructions received pursuant to clause (i) above.
(g) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Certificate Administrator 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(g) and agrees to be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if a Responsible Officer
of the Certificate Registrar has actual knowledge that the proposed
Transferee is a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee shall
be effected;
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that (if the Transferor is not a U.S. Person)
such transfer does not have the effect of allowing the Transferor to
avoid tax on accrued excess inclusions; and
(E) In addition, the Certificate Registrar may as a condition
of the registration of any such transfer require the transferor to
furnish such other certifications, legal opinions or other
information (at the transferor's expense) as it may reasonably
require to confirm that the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and other applicable
laws.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(g), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(g) 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.
(iii) The Servicer shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon written
request of the Certificate Administrator, all information in its
possession and necessary to compute any tax imposed as a result of the
Transfer of an Ownership Interest in a Residual Certificate to any Person
who is a Disqualified Organization or Agent thereof, including the
information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate.
(h) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange.
Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five Business Days of such request if made at such
Registrar Office, or within 10 Business Days if made at the office of a transfer
agent (other than the Certificate Registrar), execute and deliver at such
Registrar Office or at the office of such transfer agent, as the case may be, to
the transferee (in the case of transfer) or Holder (in the case of exchange) or
send by first-class mail (at the risk of the transferee in the case of transfer
or Holder in the case of exchange) to such address as the transferee or Holder,
as applicable, may request in writing, a Definitive Certificate or Certificates,
as the case may require, for a like aggregate Denomination and in such
Denomination or Denominations as may be requested. The Certificate Registrar may
decline to accept any request for an exchange or registration of transfer of any
Certificate during the period of 15 days preceding any Distribution Date.
(i) If a Responsible Officer of the Certificate Registrar becomes
aware that a beneficial interest in a Private Global Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that a
Private Definitive Certificate is being held by or for the benefit of a Person
who is not an Eligible Investor or an Institutional Accredited Investor, or
that, in either case, such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right, but not the
obligation, to void such transfer, if permitted under applicable law, or to
require the investor to sell (x) such Private Global Certificate to an Eligible
Investor or (y) the beneficial interest in such Private Definitive Certificate
to an Eligible Investor or an Institutional Accredited Investor, within 14 days
after notice of such determination, and each Certificateholder by its acceptance
of a Certificate authorizes the Certificate Registrar to take such action.
(j) The Certificate Registrar shall provide notice to the Trustee,
the Servicer, the Special Servicer and the Depositor of the transfer of any
Private Definitive Certificate. The Certificate Owner of a Private Definitive
Certificate that wishes to receive the information described in Section 3.28(c)
shall provide notice to the Certificate Administrator, the Trustee, the
Servicer, the Special Servicer and the Depositor of the transfer of any
beneficial ownership in such Private Definitive Certificate and of the address
to which such information should be sent. Upon the written request of the
Trustee, the Servicer, the Special Servicer or the Depositor, the Certificate
Registrar shall provide each such Person with an updated copy of the Certificate
Register at the expense of the requesting party.
(k) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
(l) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Regular Certificates (except, the Class J, Class K, Class L,
Class M, Class N and Class O Certificates) initially shall be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, in the
case of the Public Certificates (except as provided in subsection (c)(i) below),
shall not be entitled to Definitive Certificates in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall transfer
the Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent only in accordance
with the Depository's normal procedures. Neither the Trustee nor the Certificate
Registrar shall have any responsibility to monitor or restrict the transfer of
any ownership interest in a Book-Entry Certificate transferable through the
book-entry facilities of the Depository.
(b) The Trustee, the Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Certificate Administrator may
establish a reasonable record date in connection with solicitations of consents
from or voting by Certificateholders and shall give notice to the Depository of
such record date.
(c) (i) Upon the request of any Certificate Owner of Private Global
Certificates, or the transferee of such Certificate Owner, that its interest in
such Private Global Certificates be exchanged for Private Definitive
Certificates, such Certificate Owner or transferee, upon presentation of
appropriate documentation to the Certificate Administrator as required by this
Article V and subject to the rules and procedures of the Depositary, shall be
entitled to be issued one or more Private Definitive Certificates in
denominations authorized pursuant to Section 5.01(b) equal in the aggregate to
the Denomination of such interest in such Private Global Certificates.
(d) If (A)(1) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (2) the Depositor is unable to locate a qualified successor, or
(B) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository with respect to some or all of the Classes, or (C) the
Certificate Administrator determines that Definitive Certificates are required
in accordance with the provisions of Section 5.03(e), the Certificate
Administrator shall notify the affected Certificate Owners, through the
Depository with respect to all Classes, any Class or any portion of any Class of
the Certificates, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same.
(i)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,
authenticate and deliver, within five Business Days of such request if
made at the Registrar Office, or within ten Business Days if made at the
office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Servicer, the Trustee, the
Special Servicer and the Certificate Registrar shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for purposes of evidencing ownership of any Class
of Certificates, the registered Holders of such Definitive Certificates
shall be recognized as Certificateholders hereunder and, accordingly,
shall be entitled directly to receive payments on, to exercise Voting
Rights with respect to, and to transfer and exchange such Definitive
Certificates.
For purposes of any provision of this Pooling and Servicing
Agreement requiring or permitting actions with the consent of, or at the
direction of, Holders of Certificates evidencing a specified percentage of the
Voting Rights, such consent or direction may be given by a combination of
Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates, and Certificateholders owning
Definitive Certificates, evidencing in the aggregate such specified percentage
of the Voting Rights.
(e) 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.
(f) 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,
authenticate and 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 Certificate Administrator shall notify the
affected Certificate Owners and make appropriate arrangements for the
effectuation of the purpose of this clause.
(g) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(h) 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(h).
Upon receipt by the Certificate Registrar at the Registrar Office of (i) the
Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (ii) written instructions given in accordance with
Depository Rules directing the Certificate Registrar to credit or cause to be
credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interests (iv) if the affected Certificate is a Private
Certificate, a QIB Investment Representation Letter (or, if the affected
Certificate is a Class G or Class H Certificate, a Regulation S Investment
Representation Letter), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar shall instruct the Depository or the custodian holding
such Book-Entry Certificate on behalf of the Depository to increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions a
corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute
and authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Trustee and the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01 and for all
other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder," and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Certificate Registrar and any agent of any of
them shall be affected by notice to the contrary except as provided in Section
5.02(d).
Section 5.06 Access to Certificateholders' Names and
Addresses.
(a) If any Certificateholder, the Special Servicer or the Servicer
(for purposes of this Section 5.05, an "Applicant") applies in writing to the
Certificate Registrar, and such application states that the Applicant desires to
communicate with other Certificateholders, the Certificate Registrar shall
furnish or cause to be furnished to such Applicant a list of the names and
addresses of the Certificateholders as of the most recent Record Date, at the
expense of the Applicant, in the case of any Certificateholder and the expense
of the Trust Fund in the case of the Servicer or the Special Servicer.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee and the Certificate Registrar that the
Trustee and the Certificate Registrar shall not be held accountable in any way
by reason of the disclosure of any information as to the names and addresses of
the Certificateholders hereunder, regardless of the source from which such
information was derived.
(c) From time to time, upon the request of and at no expense to the
Trustee, the Certificate Registrar shall deliver to the Trustee the list of
Certificateholders and their addresses as currently reflected in the Certificate
Register.
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the
Depositor, the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation, national banking association and corporation,
respectively, under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Loans and to perform its respective duties under
this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets to any Person (other than the
Trustee), in which case any Person resulting from any merger or consolidation to
which the Depositor, the Servicer or the Special Servicer shall be a party, or
any Person succeeding to the business of the Depositor, the Servicer or the
Special Servicer, shall be the successor of the Depositor, the Servicer and the
Special Servicer, as the case may be, hereunder, without the execution or filing
of any paper (other than an assumption agreement wherein the successor shall
agree to perform the obligations of and serve as the Depositor, the Servicer or
the Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not or has not resulted in a withdrawal,
downgrading or qualification of the then-current ratings of the Classes of
Certificates that have been so rated (as evidenced by a letter to such effect
from each Rating Agency).
Section 6.03 Limitation on Liability of the Trustee, the
Certificate Administrator, the Depositor, the Servicer, the Special
Servicer and Others.
(a) None of the Depositor, the Trustee, the Certificate
Administrator, the Custodian, the Servicer, the Special Servicer nor any of the
Affiliates, directors, members, managers, officers, employees or agents of any
of them shall be under any liability to the Trust Fund, the Underwriters, the
parties hereto or the Certificateholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Trustee, the Certificate Administrator, the Custodian, the
Servicer, the Special Servicer or any such Person against any breach of
warranties or representations made herein or any liability which would otherwise
be imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of negligent disregard of obligations and
duties hereunder. The Depositor, the Servicer, the Special Servicer, the
Trustee, the Certificate Administrator, the Custodian and any director, officer,
employee or agent of the Depositor, the Trustee, the Certificate Administrator,
the Custodian, the Servicer or the Special Servicer may rely in good faith on
any document of any kind which, prima facie, is properly executed and submitted
by any Person respecting any matters arising hereunder.
The Depositor, the Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Custodian and any Affiliate, director, member,
manager, officer, employee or agent of any of the foregoing shall be indemnified
and held harmless by the Trust Fund against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement, the
Loans or the Certificates, other than any loss, liability or expense: (i)
specifically required to be borne thereby pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made by it herein; (iii) incurred by reason of bad faith, willful misconduct or
negligence in the performance of its obligations or duties hereunder, or by
reason of negligent disregard of such obligations or duties or (iv) in the case
of the Depositor and any of its directors, officers, employees and agents,
incurred in connection with any violation by any of them of any state or federal
securities law.
(b) None of the Depositor, the Trustee, the Certificate
Administrator, the Custodian, the Servicer or 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, the Special Servicer, the Trustee, the Custodian or the
Certificate Administrator may in its discretion undertake any such action,
proceeding, hearing or examination that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, proceeding, hearing or examination and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Servicer, the Special Servicer, the Trustee,
the Custodian and the Certificate Administrator shall be entitled to be
reimbursed therefor out of amounts attributable to the Loans on deposit in the
Collection Account as provided by Section 3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Certificate Administrator, the
Custodian and the Trust Fund and each other and any Affiliate, director,
officer, employee or agent thereof, and hold them harmless, from and against any
and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related out-of-pocket costs, judgments, and any other out-of-pocket costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of any willful misfeasance, bad faith or negligence of the Servicer or
the Special Servicer, as the case may be, in the performance of its obligations
and duties under this Agreement or by reason of negligent disregard by the
Servicer or the Special Servicer, as the case may be, of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein. The Servicer and the Special Servicer may consult with
counsel, and any written advice or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith in accordance with the Servicing Standard
and in accordance with such advice or Opinion of Counsel relating to (i) tax
matters, (ii) any amendment of this Agreement under Article X, (iii) the
defeasance of any Defeasance Loan or (iv) any matter involving legal proceeding
with a Borrower.
The Trustee, the Certificate Administrator, the Custodian, the
Servicer, the Special Servicer or the Depositor, as the case may be, shall
immediately notify the Servicer or the Special Servicer, as applicable, if a
claim is made by a third party with respect to this Agreement or the Loans
entitling it to indemnification hereunder, whereupon the Servicer or the Special
Servicer, as the case may be, shall assume the defense of such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Servicer or the
Special Servicer, as the case may be, shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Servicer's, or the Special Servicer's, as the case may be, defense of
such claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Servicer, the Trustee, the Certificate Administrator, the
Custodian and the Special Servicer.
The Depositor agrees to indemnify the Servicer and the Special
Servicer and any Affiliate, director, officer, employee or agent thereof, and
hold them harmless, from and against any and all claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related out-of-pocket costs,
judgments, and any other out-of-pocket costs, liabilities, fees and expenses
that any of them may sustain arising from or as a result of any breach of
representations and warranties or failure in the performance of the Depositor's
obligations and duties under this Agreement. The Servicer and the Special
Servicer shall immediately notify the Depositor if a claim is made by a third
party with respect to this Agreement or the Loans entitling it to
indemnification hereunder, whereupon the Depositor shall assume the defense of
such claim and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Depositor shall not affect any rights any of the foregoing Persons may have
to indemnification under this Agreement or otherwise, unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement.
(d) Any director, officer, employee, agent of the Servicer, Special
Servicer or any of their Affiliates shall not be personally liable for any error
of judgment made in good faith by any officer, unless it shall be proved that
the Servicer, the Special Servicer or such officer was negligent in ascertaining
the pertinent facts. No director, officer, employee or agent of the Servicer,
Special Servicer or any of their Affiliates shall be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement.
Section 6.04 Depositor, Servicer and Special Servicer
Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor,
the Servicer and the Special Servicer shall resign from their respective
obligations and duties hereby imposed on each of them except upon (a) a
determination that such party's duties hereunder are no longer permissible under
applicable law or (b) in the case of the Servicer or Special Servicer, upon the
appointment of, and the acceptance of such appointment by, a successor Servicer
or Special Servicer, as applicable and receipt by the Trustee of written
confirmation from each applicable Rating Agency that such resignation and
appointment will not cause such Rating Agency to downgrade, withdraw or qualify
any of then-current ratings assigned by such Rating Agency to any Class of
Certificates. Any such determination permitting the resignation of the
Depositor, the Servicer or the Special Servicer pursuant to above clause (a)
above shall be evidenced by an Opinion of Counsel (the cost of which, together
with any other expenses of such resignation, shall be at the expense of the
resigning party) to such effect delivered to the Trustee. No such resignation by
the Servicer or the Special Servicer shall become effective until the Trustee or
a successor Servicer shall have assumed the Servicer's or Special Servicer's, as
applicable, responsibilities and obligations in accordance with Section 7.02.
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
<PAGE>
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special
Servicer Termination.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to make (x) any remittance
(including a P&I Advance) required to be made by the Servicer to the
Collection Account, Servicing Accounts, Excess Interest Distribution
Account, Interest Reserve Account or either Distribution Account by 5:00
p.m. New York City time on the Servicer Remittance Date, which is not
cured by 10:00 a.m. New York City time on the related Distribution Date or
(y) any Servicing Advance or Yield Protection Payment Advance when
required to be made pursuant to this Agreement; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Servicer for deposit into, or the Servicer to make a required
deposit into the Collection Account or the REO Account, or to deposit
into, or to remit to the Certificate Administrator 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 the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a
period of 30 days (15 days in the case of a failure to pay the premium for
any Insurance Policy required to be maintained hereunder) after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer or the Special Servicer,
as the case may be, by any other party hereto, or to the Servicer, the
Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, that with
respect to any such failure which is not curable within such 30-day period
or 15-day period, as applicable, the Servicer or the Special Servicer, as
the case may be, shall have an additional cure period of 30 days to effect
such cure so long as the Servicer or the Special Servicer, as the case may
be, has commenced to cure such failure within such initial 30-day period
or 15-day period, as applicable, and has diligently pursued, and is
continuing to pursue, a full cure; or
(iv) any breach on the part of the Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable (except as set forth in clause (ix) hereto),
which materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Servicer or the Special Servicer,
as the case may be, by the Depositor or the Trustee, or to the Servicer,
the Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee shall have received and forwarded to the
Servicer and the Special Servicer, as applicable, written notice from any
Rating Agency that the continuation of the Servicer or Special Servicer in
such capacity, has resulted, or would result, in and of itself, in a
downgrade, qualification or withdrawal of any rating then-assigned to any
Class of Certificates by such Rating Agency if the Servicer or Special
Servicer, as the case may be, is not replaced (or with respect to Moody's,
the Certificates are placed on watch for downgrade, citing servicing
concerns), and the Trustee shall not have received subsequent notice from
such Rating Agency (within 30 days) indicating that no such downgrade,
qualification or withdrawal will result (or that, if it has resulted, it
will be rescinded); or
(ix) the Servicer or the Special Servicer shall have failed to
satisfy the covenant set forth in Section 3.23(b) or Section 3.24(b), as
applicable.
(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 and with respect to an Event of
Default pursuant to Section 7.01(a)(viii), shall, terminate, by notice in
writing to the Defaulting Party (a "Termination Notice"), with a copy of such
notice to the Depositor and the Certificate Registrar, all of the rights and
obligations of the Defaulting Party under this Agreement and in and to the Loans
and the proceeds thereof; provided, however, that the Defaulting Party shall be
entitled to the payment of accrued and unpaid compensation and reimbursement
through the date of such termination as provided for under this Agreement for
services rendered and expenses incurred.
From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the Trustee
is hereby authorized and empowered to execute and deliver, on behalf of and at
the expense of the Defaulting Party, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Loans and related documents, or otherwise.
The Servicer and Special Servicer each agree that if it is
terminated pursuant to this Section 7.01(b), it shall promptly (and in any event
no later than 20 Business Days after its receipt of the notice of termination)
provide the Trustee with all documents and records requested by it to enable the
Trustee to assume the Servicer's or the Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Servicer's or the Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within five Business Days to the Trustee for administration by it of
all cash amounts which shall at the time be or should have been credited by the
Servicer to the Collection Account, or any Servicing Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Loans or any REO
Property (provided, however, that the Servicer and the Special Servicer each
shall, if terminated pursuant to this Section 7.01(b), continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, whether in respect of Advances (in the case of
the Servicer) or otherwise, and it and its directors, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination).
(c) The Holder or Holders of more than 50% of the aggregate
Certificate Balance of the Controlling Class shall be entitled to terminate the
rights and obligations of the Special Servicer under this Agreement, with or
without cause, upon 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.
(e) If the Servicer receives a Termination Notice pursuant to
Section 7.01(b) relating solely to an Event of Default set forth in Section
7.01(a)(viii), and if the Servicer provides the Certificate Administrator with
the appropriate "request for proposal" materials within five Business Days after
receipt of such written notice of termination, then the Certificate
Administrator shall promptly thereafter (using such "request for proposal"
materials provided by the Servicer) solicit good faith bids for the rights to
service the Loans under this Agreement from at least three Qualified Bidders or,
if three Qualified Bidders cannot be located, then from as many Persons as the
Certificate Administrator can determine are Qualified Bidders. At the
Certificate Administrator's request, the Servicer shall supply the Certificate
Administrator with the names of Persons from whom to solicit such bids. In no
event shall the Certificate Administrator be responsible if less than three
Qualified Bidders submit bids for the right to service the Loans under this
Agreement.
Each bid proposal shall require any Successful Bidder (as defined
below), as a condition of its bid, to enter into this Agreement as successor
Servicer and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Servicer hereunder. The Certificate Administrator shall
select the Qualified Bidder with the highest cash bid (or such other Qualified
Bidder as the terminated Servicer may direct) (the "Successful Bidder") to act
as successor Servicer hereunder. The Certificate Administrator shall direct the
Successful Bidder to enter into this Agreement as successor Servicer pursuant to
the terms hereof, and, in connection therewith to deliver the amount of the
Successful Bidder's cash bid to the Certificate Administrator by wire transfer
of immediately available funds to an account specified by the Certificate
Administrator no later than 10:00 am New York City time on the date specified
for the assignment and assumption of the servicing rights hereunder.
Upon the assignment and acceptance of the servicing rights hereunder
to and by the Successful Bidder and receipt of such cash bid, the Certificate
Administrator shall remit or cause to be remitted to the terminated Servicer the
amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred by the Certificate Administrator in connection
with obtaining such bid and transferring servicing) by wire transfer of
immediately available funds to an account specified by the terminated Servicer
no later than 1:00 p.m. New York City time on the date specified for the
assignment and assumption of the servicing rights hereunder.
If the Successful Bidder has not entered into this Agreement as
successor Servicer within 30 days after the termination of the Servicer
hereunder or no Successful Bidder was identified within such 30-day period, the
Certificate Administrator shall have no further obligations under this Section
7.01(e).
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the
case may be, either resigns pursuant to the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and
provided that no acceptable successor has been appointed and subject to Section
7.01(e), the Trustee shall be and become the successor to the Servicer or
Special Servicer, as the case may be, in all respects in its capacity as
Servicer or Special Servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties,
liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of the Servicer or Special Servicer by
the terms and provisions hereof; provided, however, that any failure to perform
such duties or responsibilities caused by the terminated party's failure under
Section 7.01 to provide information or moneys required hereunder shall not be
considered a default by such successor hereunder.
The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen prior to its
termination as Servicer, and the appointment of a successor Special Servicer
shall not affect any liability of the predecessor Special Servicer which may
have arisen prior to its termination as Special Servicer. The Trustee in its
capacity as successor to the Servicer or the Special Servicer, as the case may
be, shall not be liable for any of the representations and warranties of the
Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Servicer or
Special Servicer or for any losses incurred by the Servicer pursuant to Section
3.06 hereunder, nor shall the Trustee be required to purchase any Loan
hereunder.
As compensation therefor, the Trustee as successor Servicer shall be
entitled to the Servicing Fees and all fees relating to the Loans which the
Servicer would have been entitled to if the Servicer had continued to act
hereunder (other than the Assignable Primary Servicing Fee), 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. The Trustee shall not be entitled
to receive the Assignable Primary Servicing Fees.
Notwithstanding the above and subject to Section 7.01(e), the
Trustee may, if it shall be unwilling to act as successor to the Servicer or
Special Servicer, or shall, if it is unable to so act, or if the Trustee is not
approved as a servicer or special servicer, as applicable, by each Rating
Agency, or if the Holders of Certificates entitled to at least 51% of the Voting
Rights so request in writing to the Trustee, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution which meets the criteria set forth herein, as the
successor to the Servicer or the Special Servicer, as applicable, hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer or Special Servicer hereunder. No appointment of a successor to
the Servicer or the Special Servicer under this Section 7.02 shall be effective
(i) until each of the Rating Agencies shall have confirmed in writing that its
then-current rating (if any) of each Class of Certificates will not be qualified
(as applicable), downgraded or withdrawn by reason thereof and (ii) until the
assumption in writing by the successor to the Servicer or the Special Servicer
of all its responsibilities, duties and liabilities hereunder that arise
thereafter. Pending appointment of a successor to the Servicer or the Special
Servicer hereunder, unless the Trustee shall be prohibited by law from so
acting, the Trustee shall act in such capacity as herein above provided.
In connection with such appointment and assumption of a successor to
the Servicer or Special Servicer as described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Loans as
it and such successor shall agree; provided, however, that no such compensation
with respect to a successor Servicer or successor Special Servicer, as the case
may be, shall be in excess of that permitted the terminated Servicer or Special
Servicer, as the case may be, hereunder and, in the case of a successor
appointed pursuant to the provision of Section 7.01(e), such compensation shall
not be less than that paid to the terminated Servicer, in each case excluding
the Assignable Primary Servicing Fee; provided, further, that if no successor
can be obtained for such compensation, then, subject to approval by the Rating
Agencies, additional amounts shall be paid to such successor and such amounts in
excess of that permitted the terminated Servicer or Special Servicer, as the
case may be, shall be treated as Collateral Support Deficit. The Trustee, the
Servicer or the Special Servicer (whichever is not the terminated party) and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Any costs and expenses
associated with the transfer of the servicing function (other than with respect
to a termination without cause) under this Agreement shall be borne by the
predecessor Servicer or Special Servicer.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee would be deemed
to have notice of the occurrence of such an event in accordance with Section
8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3% (or 100%
in the case of an Event of Default pursuant to Section 7.01(a)(viii)) of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the receipt
of notice from the Trustee of the occurrence of such Event of Default; provided,
however, that an Event of Default under clause (i) of Section 7.01(a) may not be
waived. Upon any such waiver of an Event of Default and reimbursement by the
Servicer to the Trustee and the Certificate Administrator of all costs and
expenses incurred by it in connection with such Event of Default and prior to
its waiver, such Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
Section 7.05 Trustee Advances.
If the Servicer fails to fulfill its obligations hereunder to make
any Advances, the Trustee shall perform such obligations (x) within one Business
Day of such failure by the Servicer with respect to Servicing Advances to the
extent a Responsible Officer of the Trustee has been notified in writing of such
failure with respect to such Servicing Advances and (y) by 1:00 p.m., New York
City time, on the related Distribution Date with respect to P&I Advances. With
respect to any such Advance made by the Trustee, the Trustee shall succeed to
all of the Servicer's rights with respect to Advances hereunder, including,
without limitation, the Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Servicer's default in its obligations hereunder); provided, however,
that if Advances made by both the Trustee and the Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts available to repay such Advances and the interest thereon hereunder
shall be applied entirely to the Advances outstanding to the Trustee, until such
Advances shall have been repaid in full, together with all interest accrued
thereon, prior to reimbursement of the Servicer for such Advances. The Trustee
shall be entitled to conclusively rely on any notice given with respect to a
Nonrecoverable Advance hereunder.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE AND CERTIFICATE ADMINISTRATOR
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, then
(subject to Section 8.02(vii) below) the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall make a request to the responsible party to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Servicer or
the Special Servicer, and accepted by the Trustee in good faith, pursuant to
this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be 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;
(iii) The Trustee shall not be 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); and
(iv) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.01, the Trustee shall
have no duty except in the capacity as successor Servicer or successor
Special Servicer (A) to see to any recording, filing or depositing of this
Agreement or any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any
re-recording, refiling or redepositing of any thereof, (B) to see to any
insurance, and (C) to confirm or verify the contents of any reports or
certificates of the Servicer or Special Servicer delivered to the Trustee
pursuant to this Agreement reasonably believed by the Trustee to be
genuine and to have been signed or presented by the proper party or
parties.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless, in the Trustee's reasonable opinion,
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; the Trustee shall not be required to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default which has not been cured, to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such reasonable examination shall
be paid by the Servicer or, if paid by the Trustee, shall be repaid by the
Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such
agents or attorneys shall not relieve the Trustee of its duties or
obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall
not be required to take any action with respect to, or be deemed to have
notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall
have received written notice thereof. In the absence of receipt of such
notice and such actual knowledge otherwise obtained, the Trustee may
conclusively assume that there is no default or Event of Default;
(viii) The Trustee shall not be responsible for any act or
omission of the Servicer, the Special Servicer or the Directing
Certificateholder (unless the Trustee is acting as Servicer, Special
Servicer or the Directing Certificateholder, as the case may be) or of the
Depositor; and
(ix) The Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the power
granted hereunder.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee in Section 2.04, shall be taken as the
statements of the Depositor, the Servicer or the Special Servicer, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee does not make any representations as to the validity or sufficiency of
this Agreement or of any Certificate or of any Loan or related document. The
Trustee shall not be accountable for the use or application by the Depositor of
any of the Certificates issued to it or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor in respect of the
assignment of the Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Collection Account or any other account by or on behalf of
the Depositor, the Servicer, the Special Servicer or the Trustee. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Servicer or the Special Servicer, and accepted
by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual capacity and not as Trustee, may
become the owner or pledgee of Certificates, and may deal with the Depositor,
the Servicer, the Special Servicer, the Certificate Administrator, the
Custodian, the Initial Purchaser and the Underwriters in banking transactions,
with the same rights it would have if it were not Trustee.
Section 8.05 Fees and Expenses of Trustee and
Certificate Administrator; Indemnification of Trustee and Certificate
Administrator.
(a) As compensation for the performance of its duties, the Trustee
shall be paid the Trustee Fee, equal to one month's interest at the Trustee Fee
Rate on the Stated Principal Balance of each Loan or REO Loan, which shall cover
recurring and otherwise reasonably anticipated expenses of the Trustee. The
Trustee Fee (which shall not be limited to any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole form of compensation for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder.
(b) As compensation for the performance of its duties, the
Certificate Administrator shall be paid the Certificate Administrator Fee, equal
to one month's interest at the Certificate Administrator Fee Rate on the Stated
Principal Balance of each Loan or REO Loan, which shall cover recurring and
otherwise reasonably anticipated expenses of the Certificate Administrator. The
Certificate Administrator Fee (which shall not be limited to any provision of
law in regard to the compensation of a Certificate Administrator of an express
trust) shall constitute the Certificate Administrator's sole form of
compensation for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties of the Certificate Administrator hereunder.
(c) The Trustee and the Certificate Administrator shall each be paid
or reimbursed by the Trust Fund upon its request for all reasonable expenses and
disbursements incurred by the Trustee or the Certificate Administrator pursuant
to and in accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(iii) except any such expense, disbursement or
advance as may arise from its negligence, bad faith or willful misconduct;
provided, however, that subject to Section 8.02(iii) and 8.14(b), respectively,
neither the Trustee nor the Certificate Administrator shall refuse to perform
any of its duties hereunder solely as a result of the failure to be paid the
Trustee Fee, the Certificate Administrator Fee or the Trustee's or the
Certificate Administrator's expenses.
(d) The Trustee and any Affiliate, director, officer, employee or
agent of the Trustee shall be indemnified and held harmless by the Trust Fund
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement, and expenses incurred in becoming successor
servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, this Agreement, the Loans, the Certificates or any
act or omission of the Trustee relating to the exercise and performance of any
of the powers and duties of the Trustee hereunder; provided, however, that
neither the Trustee nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(d) for (i) allocable
overhead, (ii) routine expenses or disbursements incurred or made by or on
behalf of the Trustee in the normal course of the Trustee's performing its
duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 8.05(d) shall survive any resignation or removal
of the Trustee and appointment of a successor thereto.
(e) The Certificate Administrator and any Affiliate, director,
officer, employee or agent of the Certificate Administrator shall be indemnified
and held harmless by the Trust Fund 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
to the extent not otherwise paid hereunder) arising out of, or incurred in
connection with, this Agreement, the Loans, the Certificates or any act or
omission of the Certificate Administrator relating to the exercise and
performance of any of the powers and duties of the Certificate Administrator
hereunder; provided, however, that neither the Certificate Administrator nor any
of the other above specified Persons shall be entitled to indemnification
pursuant to this Section 8.05(e) for (i) allocable overhead, (ii) routine
expenses or disbursements incurred or made by or on behalf of the Certificate
Administrator in the normal course of the Certificate Administrator's performing
its duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Certificate Administrator'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
Certificate Administrator made herein. The provisions of this Section 8.05(e)
shall survive any resignation or removal of the Certificate Administrator and
appointment of a successor thereto.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank or national banking
association, organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred under this Agreement, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority and shall not be an Affiliate of the
Servicer or the Special Servicer (except during any period when the Trustee is
acting as, or has become successor to, the Servicer or the Special Servicer, as
the case may be, pursuant to Section 7.02), (ii) an institution insured by the
Federal Deposit Insurance Corporation and (iii) an institution whose long-term
senior unsecured debt is rated "AA-" by DCR (or, if not rated by DCR, an
equivalent rating from at least two other NRSROs), "AA-" by Fitch and "Aa2" by
Moody's (or such entity as would not, as evidenced in writing by such Rating
Agency, result in the qualification (as applicable), downgrading or withdrawal
of any of then-current ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
either REMIC created hereunder is in a state or local jurisdiction that imposes
a tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Trustee shall
elect either to (i) resign immediately in the manner and with the effect
specified in Section 8.07, (ii) pay such tax at no expense to the Trust Fund or
(iii) administer each REMIC created hereunder from a state and local
jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer and the Rating Agencies by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Servicer, the Special Servicer and the Certificateholders by
the Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee. The resigning Trustee
shall be responsible for the payment of all reasonable expenses incurred in
connection with such resignation and discharge and the appointment of a
successor trustee
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 or if the Depositor has received
notice from the Rating Agencies that failure to remove the Trustee will result
in a downgrade or withdrawal of the then-current rating assigned to any Class of
Certificates, 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 and the
Rating Agencies 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. The Trustee shall be reimbursed for all
costs and expenses incurred by it in connection with such removal within 30 days
of demand therefor from amounts on deposit in the Lower-Tier Distribution
Account (provided the Trustee is removed without cause).
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Within 30 days following any succession of the Trustee under this
Agreement, the predecessor Trustee shall be paid all accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred. No Trustee shall be liable for any action or
omission of any successor Trustee.
Section 8.08 Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Servicer, the
Special Servicer and to its predecessor Trustee, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee, shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein. The predecessor Trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by the Custodian, which Custodian shall become the agent of
the successor Trustee), and the Depositor, the Servicer, the Special Servicer,
the Certificate Administrator and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor Trustee all such
rights, powers, duties and obligations, and to enable the successor Trustee to
perform its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.08, the Servicer shall mail notice of the succession
of such Trustee hereunder to the Depositor and the Certificateholders. If the
Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, such successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
Section 8.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee, hereunder; provided, that, in the case of
the Trustee, such successor Person shall be eligible under the provisions of
Section 8.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee will provide notice of such event to the Servicer,
the Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodian.
The Certificate Administrator is hereby appointed Custodian to hold
all of the Mortgage Files as agent for the Trustee. The Custodian is, and any
successor Custodian shall be, a depository institution subject to supervision by
federal or state authority, has combined capital and surplus of at least
$15,000,000 and qualified to do business in the jurisdiction in which it holds
any Mortgage File. The Custodian is not, and any successor Custodian shall not,
be the Depositor or any Affiliate of the Depositor. The Custodian is 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 the Custodian does not relieve the Trustee from any
of its obligations hereunder, and the Trustee shall remain responsible for all
acts and omissions of the Custodian. The 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 Private
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 Private 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 (or, with respect to the items described in clauses (F)
and (H) below, the Custodian) shall maintain at its offices primarily
responsible for administering the Trust Fund and shall, upon reasonable advance
written notice, make available during normal business hours for review by any
Holder of a Certificate, the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder, any Rating Agency or any other Person to whom the
Trustee or Custodian, as applicable, believes such disclosure is appropriate,
originals or copies of the following items to the extent such documents have
been delivered to the Trustee or Custodian, as applicable: (i) in the case of a
Holder or prospective transferee of a Private Certificate, any private placement
memorandum or other disclosure document relating to the Class of Certificates to
which such Private Certificate belongs, in the form most recently provided to
the Trustee and (ii) in all cases, (A) this Agreement and any amendments hereto
entered into pursuant to Section 10.01, (B) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (C) all Officer's Certificates delivered to the Trustee
since the Closing Date pursuant to Section 3.13, (D) all accountants' reports
delivered to the Trustee since the Closing Date pursuant to Section 3.14, (E)
any and all notices, reports and Environmental Assessments delivered to the
Trustee with respect to any Mortgaged Property securing a Defaulted Loan as to
which the environmental testing contemplated by Section 3.09(c) revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied (but only for so long as such Mortgaged Property or
the related Loan are part of the Trust Fund), (F) any and all modifications,
waivers and amendments of the terms of a Loan entered into by the Servicer or
the Special Servicer and delivered to the Custodian pursuant to Section 3.20
(but only for so long as the affected Loan is part of the Trust Fund), (G) 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, (H) any and all of the Loan Documents contained in the
Mortgage File, (I) any and all Appraisals obtained pursuant to the definition of
"Appraisal Reduction" herein, (J) information regarding the occurrence of
Servicing Transfer Events as to the Loans and (K) 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 or Custodian, as applicable, upon written request; provided,
however, that the Trustee and the Custodian shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such copies, except in the case of copies provided to the Rating
Agencies, which shall be free of charge. In addition, without limiting the
generality of the foregoing, the Holder of any Class J, Class K, Class L, Class
M, Class N and Class O Certificate may upon written request from the Certificate
Administrator obtain a copy of any report (other than the Asset Status Report)
delivered to the Rating Agencies under this Agreement.
(b) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Servicer and the Certificate Administrator 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 make the reports available to Certificateholders
pursuant to Section 4.02, as well as certain additional information received by
the Servicer or the Certificate Administrator, as the case may be, to any
Certificateholder, the Underwriters, the Initial Purchaser, any Certificate
Owner or any prospective investor identified as such by a Certificate Owner or
the Underwriters, that requests such reports or information; provided that the
Servicer or the Certificate Administrator, as the case may be, shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing copies of such reports or information.
(c) With respect to any information furnished by the Certificate
Administrator, the Custodian or the Servicer pursuant to this Section 8.12, the
Certificate Administrator, the Custodian or Servicer, as the case may be, shall
be entitled to indicate the source of such information and the Certificate
Administrator or Servicer, as applicable, may affix thereto any disclaimer it
deems appropriate in its discretion. The Certificate Administrator 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 Certificate Administrator, the Custodian 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, the Custodian or Certificate
Administrator, as applicable, generally to the effect that such Person is a
beneficial holder of Certificates or an investment advisor representing such
Person and is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser or an investment
advisor representing such Person, confirmation executed by the requesting Person
in form and substance reasonably acceptable to the Certificate Administrator,
the Custodian or the Servicer, as the case may be, generally to the effect that
such Person is a prospective purchaser of a Certificate or an interest therein
or an investment advisor representing such Person, and is requesting the
information solely for use in evaluating a possible investment in Certificates.
None of the Servicer, the Custodian, the Certificate Administrator or the
Trustee shall be liable for the dissemination of information in accordance with
this Agreement.
Section 8.13 Representations, Warranties and Covenants
of the Trustee and Certificate Administrator.
(a) The Trustee hereby represents and warrants to the Depositor, the
Certificate Administrator, the Custodian, the Servicer and the Special Servicer
and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trustee is a banking corporation, duly organized, validly
existing and in good standing under the laws of New York;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks specifically and (b) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
Trustee to perform its obligations under this Agreement;
(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 the
ability of the Trustee to perform its obligations under this Agreement;
and
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
(b) The Trustee covenants that any custom-made software or hardware
designed or purchased or licensed by the Trustee and used by it in the course of
the operation or management of, or the compiling, reporting or generation of
data required of it by this Agreement will be capable of identifying correctly,
performing calculations and processing accurately such data after December 31,
1999. The Holders of Certificates entitled to at least 51% of the Voting Rights
may terminate the Trustee by notice in writing to the Depositor and the Trustee,
if the Trustee is in breach of the covenant set forth in this Section 8.13(b),
provided, however, the foregoing shall not limit any rights or remedies of the
Trust Fund, the Certificateholders or any other party hereto for a breach under
any other section of this Agreement that may arise out of the failure of the
Trustee to be year 2000 ready before January 1, 2000. The foregoing matters
extend and relate only to the internal functioning of the software and hardware
maintained by the Trustee, and the Trustee shall not be responsible for the
accuracy or integrity of any data or calculations provided to the Trustee by any
third party.
(c) The Certificate Administrator hereby represents and warrants to
the Depositor, the Trustee, the Servicer and the Special Servicer and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Certificate Administrator is a national banking
association, duly organized, validly existing and in good standing under
the laws of the United States;
(ii) The execution and delivery of this Agreement by the
Certificate Administrator, and the performance and compliance with the
terms of this Agreement by the Certificate Administrator, will not violate
the Certificate Administrator'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 Certificate Administrator 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 Certificate Administrator, enforceable
against the Certificate Administrator in accordance with the terms hereof,
subject to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and the rights of creditors of banks specifically and (b)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Certificate Administrator 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 Certificate Administrator's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Certificate Administrator to perform
its obligations under this Agreement or the financial condition of the
Certificate Administrator;
(vi) No litigation is pending or, to the best of the Certificate
Administrator's knowledge, threatened against the Certificate
Administrator which would prohibit the Certificate Administrator from
entering into this Agreement or, in the Certificate Administrator's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Certificate Administrator to perform its
obligations under this Agreement or the financial condition of the
Certificate Administrator; 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 Certificate Administrator, or compliance by the
Certificate Administrator 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 Certificate Administrator
of its obligations under this Agreement, and which, if not obtained would
not have a materially adverse effect on the ability of the Certificate
Administrator to perform its obligations hereunder.
(d) The Certificate Administrator covenants that any custom-made
software or hardware designed or purchased or licensed by the Certificate
Administrator and used by it in the course of the operation or management of, or
the compiling, reporting or generation of data required by this Agreement will
be capable of identifying correctly, performing calculations and processing
accurately such data with respect to dates after December 31, 1999.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may terminate the Certificate Administrator by notice in writing to the
Depositor and the Certificate Administrator, if the Certificate Administrator is
in breach of the covenant set forth in this Section 8.13(d), provided, however,
the foregoing shall not limit any rights or remedies of the Trust Fund, the
Certificateholders or any other party hereto for a breach under any other
Section of this Agreement that may arise out of the failure of the Certificate
Administrator to be year 2000 ready before January 1, 2000. The foregoing
matters extend and relate only to the internal functioning of the software and
hardware maintained by the Certificate Administrator, and the Certificate
Administrator shall not be responsible for the accuracy or integrity of any data
or calculations provided to the Certificate Administrator by any third party.
Section 8.14 Certain Matters Regarding the Certificate
Administrator.
(a) The Certificate Administrator is subject to the same obligations
and standard of care as would be imposed on the Trustee hereunder if the Trustee
were performing the duties of the Certificate Administrator. Further, the
Certificate Administrator is subject to the eligibility and other requirements
imposed on the Trustee under Sections 8.06 (except that the Certificate
Administrator may be rated "Aa3" by Moody's), 8.07, 8.08 and 8.09 of this
Agreement.
(b) The Certificate Administrator 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 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.
<PAGE>
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
Section 9.01 Termination Upon Repurchase or Liquidation
of All Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Servicer, the Special Servicer, the Certificate Administrator and the Trustee
(other than the obligations of the Certificate Administrator to provide for and
make payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by or on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earliest to occur of (i) the purchase by either
Mortgage Loan Seller, the Special Servicer, the Holders of the Controlling Class
or the Servicer of all the Loans and each REO Property remaining in the Trust
Fund at a price equal to (a) the sum of (1) the aggregate Purchase Price of all
the Loans (exclusive of REO Loans) included in the Trust Fund and (2) the
Appraised Value of each REO Property, if any, included in the Trust Fund (such
Appraisals in this subclause (2) to be conducted by an Appraiser selected and
mutually agreed upon by the Servicer and the Trustee, and approved by more than
50% of the Voting Rights of the Classes of Certificates then outstanding (other
than the Controlling Class if the Controlling Class is exercising such option
unless the Controlling Class is the only Class of Certificates then
outstanding)), minus (b) solely in the case where the Servicer is effecting such
purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to the Servicer in respect of such Advances in
accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Servicer in connection with such purchase), (ii) the
Distribution Date in September 2041 and (iii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund; provided, however, that in no event shall
the trust created hereby continue beyond the earlier of (i) the Rated Final
Distribution Date and (ii) expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James's, living on the date hereof.
The CSFB Mortgage Loan Seller may, at its option, elect to purchase
all of the Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the Trustee and the other parties hereto within 60 days of the first
Distribution Date on which the aggregate Stated Principal Balances of the Loans
and any REO Loans remaining in the Trust Fund is less than 1.00% of the
aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement. If the CSFB Mortgage Loan Seller does not exercise such
option within 60 days after it becomes exercisable by the CSFB Mortgage Loan
Seller, the MS Mortgage Loan Seller may notify the CSFB Mortgage Loan Seller,
the Special Servicer and the Trustee of its intention to exercise such option,
and if the CSFB Mortgage Loan Seller fails to exercise such option within ten
Business Days thereafter, the MS Mortgage Loan Seller shall be entitled to
exercise such option. If the MS Mortgage Loan Seller does not exercise such
option within 60 days after it becomes exercisable by the MS Mortgage Loan
Seller, the Special Servicer may notify the CSFB Mortgage Loan Seller, the MS
Mortgage Loan Seller and the Trustee of its intention to exercise such option,
and if the MS Mortgage Loan Seller fails to exercise such option within ten
Business Days thereafter, the Special Servicer shall be entitled to exercise
such option. If the Special Servicer does not exercise such option within 60
days after it becomes exercisable by the Special Servicer, the Holders of a
majority of the Percentage Interests in the Controlling Class may notify the
CSFB Mortgage Loan Seller, the MS Mortgage Loan Seller, the Special Servicer and
the Trustee of their intention to exercise such option and if none of the CSFB
Mortgage Loan Seller, the MS Mortgage Loan Seller or the Special Servicer
exercises such option within ten Business Days thereafter, such Holders of the
Controlling Class shall be entitled to exercise such option. If the Holders of a
majority of the Percentage Interests of the Controlling Class do not exercise
such option within 60 days after it becomes exercisable by them, the Servicer
may notify the CSFB Mortgage Loan Seller, the MS Mortgage Loan Seller, the
Special Servicer, the Holders of the Controlling Class and the Trustee of the
Servicer's intention to exercise such option, and if none of the CSFB Mortgage
Loan Seller, the MS Mortgage Loan Seller, the Special Servicer or the Holders of
a majority of the Percentage Interests in the Controlling Class exercise such
option within ten Business Days thereafter, the Servicer will be entitled to
exercise such option. Any purchaser pursuant to Section 9.01(a) of a Loan
serviced by a Primary Servicer shall be required to enter into a servicing
agreement with such Primary Servicer, as applicable, in the form of the related
"Prior Servicing Agreement" (as defined in the Primary Servicing Agreement) or
shall be required to pay such Primary Servicer the termination fee that would be
payable thereunder.
If the CSFB Mortgage Loan Seller, the MS Mortgage Loan Seller, the
Special Servicer, the Holders of the Controlling Class or the Servicer purchases
all of the Loans and each REO Property remaining in the Trust Fund in accordance
with the preceding paragraph, the CSFB Mortgage Loan Seller, the MS Mortgage
Loan Seller, the Special Servicer, the Holders of the Controlling Class or the
Servicer, as applicable, shall deposit in the Lower-Tier Distribution Account
not later than the P&I Advance Date relating to the Distribution Date on which
the final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited in the Collection Account).
In addition, the Servicer shall transfer to the Lower-Tier Distribution Account
all amounts required to be transferred thereto on such P&I Advance Date from the
Collection Account pursuant to the first paragraph of Section 3.04(b), together
with any other amounts on deposit in the Collection Account that would otherwise
be held for future distribution. Upon confirmation that such final deposits have
been made, the Custodian shall release or cause to be released to the CSFB
Mortgage Loan Seller, the MS Mortgage Loan Seller, the Special Servicer, the
Holders of the Controlling Class or the Servicer, as applicable, the Mortgage
Files for the remaining Loans, and the Trustee shall execute all assignments,
endorsements and other instruments furnished to it by the CSFB Mortgage Loan
Seller, the MS Mortgage Loan Seller, the Special Servicer, the Holders of the
Controlling Class or the Servicer, as applicable, as shall be necessary to
effectuate transfer of the Loans and REO Properties remaining in the Trust Fund
and its rights under the related Mortgage Loan Purchase Agreement.
For purposes of this Section 9.01, the Directing Certificateholder,
with the consent of the Holders of the Controlling Class, shall act on behalf of
the Holders of the Controlling Class in purchasing the assets of the Trust Fund
and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Trustee by letter to the Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Loans and each REO Property remaining
in the Trust Fund, not earlier than the 15th day and not later than the 25th day
of the month next preceding the month of the final distribution on the
Certificates, or (b) otherwise during the month of such final distribution on or
before the P&I Advance Determination Date in such month, in each case specifying
(i) the Distribution Date upon which the Trust Fund will terminate and final
payment of the Certificates will be made, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the offices of the Certificate Administrator or such
other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Prepayment Premiums and Yield Maintenance Charges distributable pursuant
to Section 4.01(d) to the Upper-Tier Distribution Account pursuant to Section
3.04(b) and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Certificate Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and surrendered.
Amounts transferred from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account as of the final Distribution Date shall be allocated for
the purposes, in the amounts and in accordance with the priority set forth in
Sections 4.01(a) and 4.01(e) and shall be distributed in termination and
liquidation of the Uncertificated Lower-Tier Interests and the Class LR
Certificates in accordance with Sections 4.01(b) and (d). Any funds not
distributed on such Distribution Date shall be set aside and held uninvested in
trust for the benefit of Certificateholders not presenting and surrendering
their Certificates in the aforesaid manner and shall be disposed of in
accordance with this Section 9.01 and Section 4.01(h).
Anything in this Section 9.01 to the contrary notwithstanding, the
Holders of the Class V-1 and Class V-2 Certificates shall receive that portion
of the proceeds of a sale of the assets of the Trust Fund allocable to accrued
and unpaid Excess Interest.
Section 9.02 Additional Termination Requirements.
If the CSFB Mortgage Loan Seller, the MS Mortgage Loan Seller, the
Special Servicer, the Holders of the Controlling Class or the Servicer purchases
all of the Loans and each REO Property remaining in the Trust Fund as provided
in Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Servicer shall specify the first day in the 90-day
liquidation period in a statement attached to each of the Upper-Tier
REMIC's, and the Lower-Tier REMIC's final Tax Return pursuant to Treasury
Regulations Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder;
(ii) during such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Lower-Tier REMIC to the CSFB Mortgage
Loan Seller, the MS Mortgage Loan Seller, the Special Servicer, the
Holders of the Controlling Class or the Servicer, as the case may be, for
cash; and
(iii) immediately following the making of the final payment on
the Uncertificated Lower-Tier Interests and the Certificates, the
Certificate Administrator 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), in the Trust Fund and each of the Lower-Tier REMIC and
the Upper-Tier REMIC shall terminate at that time.
Section 9.03 Purchase of ARD Loans.
The Holder of a 100% Percentage Interest in the Class V-1
Certificates may purchase any ARD Loan which is a CSFB Loan and the Holder of a
100% Percentage Interest in the Class V-2 Certificates may purchase any ARD Loan
which is a MS Loan, in each case, for up to two months after its Anticipated
Repayment Date at a price equal to the sum of the following:
(i) 100% of the outstanding principal balance of such Loan on
such Anticipated Repayment Date or Maturity Date, as applicable (less any
P&I Advances previously made on account of principal);
(ii) all unpaid interest accrued on such principal balance of
such Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date or Maturity Date,
as applicable (less any P&I Advances previously made on account of
interest);
(iii) the aggregate amount of all unreimbursed Advances with
respect to such Loan, with interest thereon at the Advance Rate, and
unpaid Servicing Fees, Special Servicing Fees, Trustee Fees, Certificate
Administrator Fees and Trust Fund expenses; and
(iv) the amount of any expenses incurred by the Trust Fund in
connection with such purchase;
provided, however, that any such purchase may be consummated only if the
applicable Holder, at its expense, provides the Trustee with an Opinion of
Counsel to the effect that such purchase (or such right to purchase) would not
cause (a) either REMIC created hereunder to fail to qualify as a REMIC under the
Code at any time that any Certificate is outstanding and (b) would not cause the
arrangement between the Trust and the Class V-1 or Class V-2 Certificateholders
to be other than a grantor trust for federal income tax purposes, and (i) an
Opinion of Counsel to the effect that such purchase would not result in a gain
which would be subject to the tax on net income derived from prohibited
transactions imposed by Code Section 860F(a)(1) or otherwise result in the
imposition of any other tax on either REMIC created hereunder under the REMIC
Provisions or (ii) an accountant's certification to the effect that such
purchase would not result in the realization of any net income to either REMIC
created hereunder.
The proceeds of any such purchase hereunder shall be deposited in
the Collection Account and disbursed as provided herein.
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or
to correct any error;
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of either
REMIC created hereunder as a REMIC at all times that any Certificate
(other than the Class V-1 and Class V-2 Certificates) is outstanding or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either REMIC created hereunder pursuant to the Code that would be a
claim against the Trust Fund or either REMIC created hereunder, provided
that the Trustee has received an Opinion of Counsel to the effect that (a)
such action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests of
any Certificateholder, and (c) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating assigned
to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
(iv) to change the timing and/or nature of deposits into the
Collection Account, the Distribution Accounts or REO Account or to change
the name in which the Collection Account is maintained, provided that (a)
the P&I Advance Date shall in no event be later than the related
Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the Trustee, adversely affect in any material
respect the interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of
Section 5.02(d) or any other provision hereof restricting transfer
of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that (a) such change shall not result
in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency to such effect, and (b) such change
shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee, cause the Trust Fund, either REMIC created hereunder or
any of the Certificateholders (other than the Transferor) to be
subject to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person or a Transfer from a
Person other than a U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee, adversely affect in any material respect the interests of any
Certificateholder not consenting thereto; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the then-current rating or ratings assigned to each
Class of Certificates by each Rating Agency as confirmed in writing.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) amend this Section 10.01.
(c) Notwithstanding the foregoing, the Trustee will not be entitled
to consent to any amendment hereto without having first received an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Servicer, the Depositor, the Special Servicer, the Trustee or any other
specified person in accordance with such amendment will not result in the
imposition of a tax on the Trust Fund, either REMIC created hereunder or cause
either REMIC created hereunder to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment to each Rating Agency and each
Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 10.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement in furtherance of the rights and interests of Certificateholders,
the cost of any Opinion of Counsel required in connection therewith pursuant to
Section 10.01(a), (b) or (c) shall be payable out of the Collection Account.
Section 10.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the cost
of which shall be paid by the Depositor) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Loan,
unless, with respect to any suit, action or proceeding upon or under or with
respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby.
It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 10.03(c), each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 10.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 10.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) (a) in the case of the Depositor, Credit
Suisse First Boston Mortgage Securities Corp., Eleven Madison Avenue, New York,
New York 10010, Attention: Allan J. Baum, with a copy to Colleen Graham, Esq.,
Compliance Department, telecopy number: (212) 325-8162; (ii) in the case of the
Underwriters and the Initial Purchaser, (a) Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, New York 10010, Attention: Allan
J. Baum, with a copy to Colleen Graham, Esq., Compliance Department, telecopy
number: (212) 325-8162, (b) Morgan Stanley & Co. Incorporated, 1585 Broadway,
New York, New York 10036, Attention: John Kessler, telecopy number: (212)
761-0350, with a copy to Gregory D. Walker, telecopy number: (212) 762-8896;
(iii) in the case of the Servicer, Wells Fargo Bank, National Association, 417
Montgomery Street, 5th Floor, San Francisco, California 94111, Attention:
Portfolio Manager, telecopy number: (415) 975-7236, with a copy to Robert F.
Darling Esq., Wells Fargo Bank, National Association, 633 Folsom Street, San
Francisco, California 94104; (iv) in the case of the Special Servicer, Lennar
Partners, Inc., 760 Northwest 107th Avenue, Suite 400, Miami, Florida 33172,
Attention: Ron Schrager, telecopy number: (305) 226-3428; (v) in the case of the
Trustee, The Chase Manhattan Bank, 450 West 33rd Street, 14th Floor, New York,
New York 10001, Attention: Capital Markets Fiduciary Services, telecopy number:
(212) 946-8302; (vi) in the case of the Certificate Administrator and Custodian,
Norwest Bank Minnesota, National Association, 11000 Broken Land Parkway,
Columbia, Maryland 21044-3562, Attention: Corporate Trust Services (CMBS)-Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, telecopy number: (410) 884-2360, and for
Certificate transfer purposes to Norwest Bank Minnesota, National Association,
Norwest Center, Sixth Street and Marquette Avenue, Minneapolis, Minnesota
55479-0113, Attention: Corporate Trust Services (CMBS) - Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-C1, telecopy number: (612) 667-4927; (vii) in the case of the Rating
Agencies, (a) Fitch IBCA, Inc., One State Street Plaza, New York, New York
10004, Attention: Commercial Mortgage Monitoring Group, telecopy number: (212)
635-0295; (b) Moody's Investor Services, Inc., 99 Church Street, New York, New
York 10007, Attention: Commercial Mortgage Surveillance Group, telecopy number:
(212) 553-1350; and (c) Duff & Phelps Credit Rating Co., 55 East Monroe Street,
Suite 3500, Chicago, Illinois, Attention: CMBS Monitoring Group, telecopy
number: (312) 368-2852; (viii) in the case of the CSFB Mortgage Loan Seller,
Credit Suisse First Boston Mortgage Capital LLC, Eleven Madison Avenue, New
York, New York 10010, Attention: Compliance Department, telecopy number: (212)
325-8162; and (ix) in the case of the MS Mortgage Loan Seller, Morgan Stanley
Mortgage Capital Inc., 1585 Broadway, New York, New York, 10036, Attention: John
Kessler, telecopy number: (212) 761-0350; or as to each such Person such other
address as may hereafter be furnished by such Person to the parties hereto in
writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
Class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Loans, all principal and interest received or
receivable with respect to the Loans (other than principal and interest payments
due and payable prior to the Cut-off Date and Principal Prepayments received
prior to the Cut-off Date), all amounts held from time to time in the Collection
Account, the Distribution Accounts and, if established, the REO Account, and all
reinvestment earnings on such amounts, and all of the Depositor's right, title
and interest in and to the proceeds of any title, hazard or other Insurance
Policies related to such Loans and (ii) this Agreement shall constitute a
security agreement under applicable law. This Section 10.07 shall constitute
notice to the Trustee pursuant to any of the requirements of the applicable UCC.
Section 10.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
Section 10.09 Article and Section Headings.
The article and Section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 10.10 Notices to Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Servicer or the
Special Servicer;
(iv) any change in the location of either of the Distribution
Accounts;
(v) the repurchase of Loans by any Mortgage Loan Seller, FINOVA
or FINOVA Capital pursuant to Section 7 of the related Mortgage Loan
Purchase Agreement or Section 9.3 of the related FINOVA Mortgage Loan
Purchase Agreement, as applicable; and
(vi) the final payment to any Class of Certificateholders.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Collection Account; and
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee.
(c) Each of the Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) all reports and other items for Loans delivered by each of
the Servicer and Special Servicer pursuant to Section 3.12;
(iii) each of its annual independent public accountants'
servicing reports described in Section 3.14;
(iv) each waiver and consent provided pursuant to Section 3.08
for Loans;
(v) any officers' certificates delivered by the Servicer and the
Special Servicer to the Trustee;
(vi) all site inspections (unless otherwise directed by such
Rating Agency);
(vii) all operating statements (unless otherwise directed by such
Rating Agency);
(viii) all rent rolls and sales reports to the extent provided by
the Borrowers and requested by such Rating Agency;
(ix) any proposed no downgrade request;
(x) any extension or modification of the Maturity Date of any
Loan;
(xi) any modification, waiver or amendment of any term of any
Loan; and
(xii) any other document that shall be reasonably requested by
any Rating Agency.
(d) The Certificate Administrator shall promptly after each
Distribution Date furnish to each Rating Agency a copy of the related Statement
to Certificateholders.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
Depositor
By: _____________________________________
Name:
Title:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
Servicer
By: _____________________________________
Name:
Title:
LENNAR PARTNERS, INC.
Special Servicer
By: _____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
Trustee
By: _____________________________________
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Certificate Administrator and
Custodian
By: _____________________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of November, 1999 before me, a notary public in and
for said State, personally appeared ______________________________________ known
to me to be a __________________________ of Credit Suisse First Boston Mortgage
Securities Corp. and a __________________________ of Credit Suisse First Boston
Corporation, the corporations that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporations, and
acknowledged to me that such corporations executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ____________ )
On the _____ day of November, 1999 before me, a notary public in and
for said State, personally appeared _________________________________ known to
me to be a _________________________ of Wells Fargo Bank, National Association,
a national banking association that executed the within instrument, and also
known to me to be the person who executed it on behalf of said national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of November, 1999 before me, ____________________
_______________________, a notary public in and for said State, personally
appeared ______________________________ known to me to be a ___________________
of Lennar Partners, Inc., a corporation that executed the within instrument, and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of November, 1999 before me, _______________
_______________________, a notary public in and for said State, personally
appeared ______________________________ known to me to be a ___________________
of The Chase Manhattan Bank, a New York banking corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said banking corporation, and acknowledged to me that such banking
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of November, 1999 before me,__________________
_______________________, a notary public in and for said State, personally
appeared ______________________________ known to me to be a ___________________
of Norwest Bank Minnesota, National Association, a national banking association
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said national banking association, and acknowledged to
me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
<PAGE>
INSERT 420064.txt
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class A-[1][2] Certificate
Pass-Through Rate: 6.91% [Initial Class A-1 Certificate Balance: $199,500,000]
[Initial Class A-2 Certificate Balance: $660,500,000]
[CUSIP No. [A-1] 22540ALJ5] Denomination of this Certificate: $[_________]
[CUSIP No. [A-2] 22540ALK2]
Rated Final Distribution Date: September 2041
No.: A-[1][2]-[__]
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MS MORTGAGE LOAN SELLER, THE
SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of October 11, 1999,
(the "Pooling and Servicing Agreement") by and among Wells Fargo Bank, National
Association, as servicer (the "Servicer"), Lennar Partners, Inc., as special
servicer ("Special Servicer"), The Chase Manhattan Bank, as trustee (the
"Trustee"), Credit Suisse First Boston Mortgage Securities Corp., as depositor
(the "Depositor") and Norwest Bank Minnesota, National Association, as
certificate administrator and custodian (the "Certificate Administrator"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance of
this Certificate, each Certificateholder assents to and becomes bound by the
Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and the Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By:_________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[1][2] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated:_______________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: _______________ By:_________________________________________
Signature
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-X CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class A-X Certificate
(Variable Rate)
Pass-Through Rate: (1) Original Class A-X Notional Balance: $1,170,108,234
- -------------
(1) The per annum rate, expressed as a percentage, obtained by dividing (i) the
sum of the products of (a) the Certificate Balance of the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N and Class O Certificates and (b) the related Component
Rate for such Distribution Date by (ii) the sum of all such Certificate
Balances.
CUSIP No. 22540ALL0 Notional Denomination of this Certificate: $[_____]
Rated Final Distribution Date: September 2041
No.: A-X-[ ]
THIS CERTIFICATE IS AN "INTEREST ONLY" CERTIFICATE AND DOES NOT HAVE A
PRINCIPAL BALANCE. DISTRIBUTIONS WILL BE CALCULATED ON THE CLASS "A-X NOTIONAL
BALANCE."
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G (a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MS MORTGAGE LOAN SELLER, THE
SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 10, 1999, AT AN ISSUE PRICE OF
___________% OF ITS ORIGINAL NOTIONAL BALANCE, INCLUDING ACCRUED INTEREST, AND A
STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON,
AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH
FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ________% CONSTANT PREPAYMENT RATE
USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE
ORIGINAL NOTIONAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY ____________%;
(II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS
APPROXIMATELY _________%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE SHORT
FIRST ACCRUAL PERIOD (NOVEMBER 10, 1999 TO NOVEMBER 15, 1999) AS A PERCENTAGE OF
THE ORIGINAL NOTIONAL BALANCE OF THIS CERTIFICATE, CALCULATED USING THE EXACT
METHOD, IS APPROXIMATELY _____________%.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of October 11, 1999 (the
"Pooling and Servicing Agreement") by and among Wells Fargo Bank, National
Association, as servicer (the "Servicer"), Lennar Partners, Inc., as special
servicer ("Special Servicer"), The Chase Manhattan Bank, as trustee (the
"Trustee"), Credit Suisse First Boston Mortgage Securities Corp., as depositor
(the "Depositor") and Norwest Bank Minnesota, National Association, as
certificate administrator and custodian (the "Certificate Administrator"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance of
this Certificate, each Certificateholder assents to and becomes bound by the
Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Notional Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and the Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORTHWEST BANK MINNESOTA,
NATIONAL
ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-X Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
NORTHWEST BANK MINNESOTA,
NATIONAL
ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated:_______________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: _____________ By:_________________________________________
Signature
<PAGE>
EXHIBIT A-3
FORM OF CLASS B CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class B Certificate
Pass-Through Rate: 7.53% Initial Class B Certificate Balance: $52,600,000
CUSIP No. 22540ALM8 Denomination of this Certificate: $[__________]
Rated Final Distribution Date: September 2041
No.: B-[___]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2 AND CLASS A-X CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE ADMINISTRATOR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MS MORTGAGE LOAN SELLER, THE
SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of October 11, 1999 (the
"Pooling and Servicing Agreement") by and among Wells Fargo Bank, National
Association, as servicer (the "Servicer"), Lennar Partners, Inc., as special
servicer ("Special Servicer"), The Chase Manhattan Bank, as trustee (the
"Trustee"), Credit Suisse First Boston Mortgage Securities Corp., as depositor
(the "Depositor") and Norwest Bank Minnesota, National Association, as
certificate administrator and custodian (the "Certificate Administrator"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance of
this Certificate, each Certificateholder assents to and becomes bound by the
Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and the Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within mentioned
Pooling and Servicing Agreement.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated: ___________________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ________________ By: ________________________________________
Signature
<PAGE>
EXHIBIT A-4
FORM OF CLASS [C][D][E][F] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class [C][D][E][F] Certificate
(Variable Rate)
[Pass-Through Rate [Class C]:
Weighted Average Net Mortgage Rate
Minus 0.24%] [Initial Class C Certificate Balance: $58,500,000]
[Pass-Through Rate [Class D]:
Weighted Average Net Mortgage Rate
Minus 0.08%] [Initial Class D Certificate Balance: $14,700,000]
[Pass-Through Rate
[Class E, F]: [Initial Class E Certificate Balance: $40,900,000]
Weighted Average
Net Mortgage Rate] [Initial Class F Certificate Balance: $20,500,000]
[CUSIP No. [Class C] 22540ALN6] Denomination of this Certificate: $[_______]
[CUSIP No. [Class D] 22540ALP1]
[CUSIP No. [Class E] 22540ALQ9] Rated Final Distribution Date: September 2041
[CUSIP No. [Class F] 22540ALR7]
No.: [C][D][E][F]-[__]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2, CLASS A-X AND CLASS B [AND CLASS [C][D][E]] CERTIFICATES] AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE ADMINISTRATOR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MS MORTGAGE LOAN SELLER, THE
SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 10, 1999, AND BASED ON ITS ISSUE
PRICE OF __________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE
AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 25 DAYS OF INTEREST AT
THE INITIAL PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
_____% CONSTANT PREPAYMENT RATE USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY ______________%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY _______%; AND (III) THE AMOUNT
OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (NOVEMBER 10, 1999 TO
NOVEMBER 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY
______________%.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of October 11, 1999 (the
"Pooling and Servicing Agreement") by and among Wells Fargo Bank, National
Association, as servicer (the "Servicer"), Lennar Partners, Inc., as special
servicer ("Special Servicer"), The Chase Manhattan Bank, as trustee (the
"Trustee"), Credit Suisse First Boston Mortgage Securities Corp., as depositor
(the "Depositor") and Norwest Bank Minnesota, National Association, as
certificate administrator and custodian (the "Certificate Administrator"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance of
this Certificate, each Certificateholder assents to and becomes bound by the
Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and the Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [C][D][E][F] Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated: ___________________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ________________ By: ________________________________________
Signature
<PAGE>
EXHIBIT A-5
FORM OF CLASS [G][H] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class [G][H] Certificate
Pass-Through Rate: Lesser of 6.91% and Weighted
Average Net Mortgage Rate
Initial Class G Certificate Balance: $32,200,000
Initial Class H Certificate Balance: $23,400,000
[CUSIP No. [Class G 144A]
22540ALZ9] Denomination of this Certificate: $[_______]
[CUSIP No. [Class G (Reg S)]
U12679 AA1] Rated Final Distribution Date: September 2041
[CUSIP No. [Class H 144A]
22540AMA3]
[CUSIP No. [Class H (Reg S)]
U12679 AB9]
No.: [G][H]-[ ]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2, CLASS A-X, CLASS B, CLASS C, CLASS D, CLASS E [AND] CLASS F [AND
CLASS G] CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE ADMINISTRATOR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR IS A U.S. PERSON WITHIN THE MEANING OF RULE
902 UNDER REGULATION S.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MS MORTGAGE LOAN SELLER, THE
SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 10, 1999, AND BASED ON ITS ISSUE
PRICE OF ______________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION
PRICE AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 25 DAYS OF
INTEREST AT THE INITIAL PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE
PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT
ASSUMPTION OF ____% CONSTANT PREPAYMENT RATE USED TO PRICE THIS CERTIFICATE: (I)
THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE IS APPROXIMATELY _____________%; (II) THE ANNUAL YIELD TO MATURITY
OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY ________%; AND (III)
THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (NOVEMBER 10, 1999
TO NOVEMBER 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY
_______________%.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of October 11, 1999 (the
"Pooling and Servicing Agreement") by and among Wells Fargo Bank, National
Association, as servicer (the "Servicer"), Lennar Partners, Inc., as special
servicer ("Special Servicer"), The Chase Manhattan Bank, as trustee (the
"Trustee"), Credit Suisse First Boston Mortgage Securities Corp., as depositor
(the "Depositor") and Norwest Bank Minnesota, National Association, as
certificate administrator and custodian (the "Certificate Administrator"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance of
this Certificate, each Certificateholder assents to and becomes bound by the
Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and the Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [G][H] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated: _____________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ______________ By: ________________________________________
Signature
<PAGE>
EXHIBIT A-6
FORM OF CLASS [J][K][L][M][N][O] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class [J][K][L][M][N][O] Certificate
[Pass-Through Rate (Class J): [Initial Certificate Principal Balance [Class J]:
Lesser of 6.91% and Weighted $11,700,000]
Average Net Mortgage Rate]
[Pass-Through Rate (Class K): [Initial Certificate Principal Balance [Class K]:
Lesser of 6.91% and Weighted $11,700,000]
Average Net Mortgage Rate]
[Pass-Through Rate (Class L): [Initial Certificate Principal Balance [Class L]:
Lesser of 6.91% and Weighted $15,800,000]
Average Net Mortgage Rate]
[Pass-Through Rate (Class M): [Initial Certificate Principal Balance [Class M]:
Lesser of 6.91% and Weighted $9,300,000]
Average Net Mortgage Rate]
[Pass-Through Rate (Class N): [Initial Certificate Principal Balance [Class N]:
Lesser of 6.91% and Weighted $7,100,000]
Average Net Mortgage Rate]
[Pass-Through Rate (Class O): [Initial Certificate Principal Balance [Class O]:
Lesser of 6.91% and Weighted $11,708,234]
Average Net Mortgage Rate]
[CUSIP No. [Class J]
22540AMB1] Denomination of this Certificate: $[______]
[CUSIP No. [Class K]
22540AMC9]
[CUSIP No. [Class L]
22540AMD7] Rated Final Distribution Date: September 2041
[CUSIP No. [Class M]
22540AME5]
[CUSIP No. [Class N]
22540AMF2]
[CUSIP No. [Class O] [144A]
22540AMG0]
[CUSIP No. [Class O] [IAI]
22540AMH8]
No.: [J][K][L][M][N][O]-[ ]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2, CLASS A-X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H[, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS O] CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE ADMINISTRATOR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MS MORTGAGE LOAN SELLER, THE
SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS ISSUED ON NOVEMBER 10, 1999, AND BASED ON ITS ISSUE
PRICE OF _________%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE
AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE (PLUS 25 DAYS OF INTEREST AT
THE INITIAL PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF
___% CONSTANT PREPAYMENT RATE USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY ______________%; (II) THE ANNUAL YIELD TO MATURITY OF THIS
CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY ________%; AND (III) THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (NOVEMBER 10, 1999 TO
NOVEMBER 15, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY
______________%.
This certifies that [____________________________________] (the
"Certificateholder") is the registered owner of a beneficial ownership interest
in a trust (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of October 11, 1999 (the "Pooling and Servicing Agreement") by and
among Wells Fargo Bank, National Association, as servicer (the "Servicer"),
Lennar Partners, Inc., as special servicer ("Special Servicer"), The Chase
Manhattan Bank, as trustee (the "Trustee"), Credit Suisse First Boston Mortgage
Securities Corp., as depositor (the "Depositor") and Norwest Bank Minnesota,
National Association, as certificate administrator and custodian (the
"Certificate Administrator"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in the Pooling
and Servicing Agreement. This Certificate is described in the Pooling and
Servicing Agreement and is issued pursuant to and subject to the Pooling and
Servicing Agreement. By acceptance of this Certificate, each Certificateholder
assents to and becomes bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and the Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [J][K][L][M][N][O] Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated: _______________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: __________________ By: ________________________________________
Signature
<PAGE>
EXHIBIT A-7
FORM OF CLASS V-[1][2] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class V-[1][2] Certificate
No.: V-[1][2]-[ ] Percentage Interest:[___]%
THIS CERTIFICATE DOES NOT HAVE A PRINCIPAL BALANCE AND IS ENTITLED TO
RECEIVE DISTRIBUTIONS ONLY IN RESPECT OF EXCESS INTEREST, IF ANY.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE ADMINISTRATOR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT. EACH PURCHASER OF THIS
CERTIFICATE IS HEREBY NOTIFIED THAT THE SELLER OF THIS CERTIFICATE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE TO ANY PERSON THAT IS AN
"INELIGIBLE CLASS V-[1][2] OWNER" (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT.)
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE REPRESENTS, FOR FEDERAL INCOME TAX PURPOSES, AN INTEREST
IN A GRANTOR TRUST CONSISTING OF THE EXCESS INTEREST AND YIELD PROTECTION
PAYMENTS (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) AND ANY HOLDER
THEREOF AGREES TO TREAT ITS INTEREST IN THE EXCESS INTEREST IN ACCORDANCE WITH
THIS REPRESENTATION.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MS MORTGAGE LOAN SELLER, THE
SERVICER, THE SPECIAL SERVICER, THE TRUSTEE, THE CERTIFICATE ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING
LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that [___________________________________________________]
(the "Certificateholder") is the registered owner of a beneficial ownership
interest in a trust (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of October 11, 1999, (the "Pooling and Servicing Agreement")
by and among Wells Fargo Bank, National Association, as servicer (the
"Servicer"), Lennar Partners, Inc., as special servicer ("Special Servicer"),
The Chase Manhattan Bank, as trustee (the "Trustee"), Credit Suisse First Boston
Mortgage Securities Corp., as depositor (the "Depositor") and Norwest Bank
Minnesota, National Association, as certificate administrator and custodian (the
"Certificate Administrator"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings thereto ascribed in the Pooling
and Servicing Agreement. This Certificate is described in the Pooling and
Servicing Agreement and is issued pursuant to and subject to the Pooling and
Servicing Agreement. By acceptance of this Certificate, each Certificateholder
assents to and becomes bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest set forth above of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Percentage Interest equal to 13.73%, and in all
other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and the Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V-[1][2] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated: ___________________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ___________________ By: ________________________________________
Signature
<PAGE>
EXHIBIT A-8
FORM OF RESIDUAL CERTIFICATE
Class [R][LR] CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE HELD OR TRANSFERRED TO A NON-U.S. PERSON (AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) OR DISQUALIFIED ORGANIZATION (AS
DEFINED BELOW).
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE ADMINISTRATOR THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES
BY OR ON BEHALF OF A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE
CODE OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE,
AND WILL NOT SUBJECT THE SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE
TRUSTEE OR THE CERTIFICATE ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
TRANSFER OF THIS CLASS [R][LR] CERTIFICATE IS RESTRICTED AS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS [R][LR]
CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" OR A NON-U.S. PERSON
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT). A DISQUALIFIED ORGANIZATION
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) INCLUDES: ANY OF (i) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE
UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER
THAN AN INSTRUMENTALITY THAT IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE
SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS
NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (ii) A FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (iii) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES
DESCRIBED IN SECTION 521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY
CHAPTER 1 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (iv) RURAL ELECTRIC AND TELEPHONE
COOPERATIVES DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE AND (v) AN ELECTING
LARGE PARTNERSHIP UNDER CODE SECTION 775. NO TRANSFER OF THIS CLASS [R][LR]
CERTIFICATE WILL BE REGISTERED BY THE TRUSTEE UNLESS THE PROPOSED TRANSFEREE HAS
DELIVERED AN AFFIDAVIT AFFIRMING, AMONG OTHER THINGS, THAT THE PROPOSED
TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION, IS NOT A NON-U.S. PERSON, AND IS
NOT ACQUIRING THE CLASS [R][LR] CERTIFICATE FOR THE ACCOUNT OF A DISQUALIFIED
ORGANIZATION OR A NON-U.S. PERSON. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-U.S. PERSON OR ANY AGENT OF
A DISQUALIFIED ORGANIZATION OR A NON U.S. PERSON, SUCH REGISTRATION SHALL BE
DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH. A COPY OF THE FORM OF AFFIDAVIT
REQUIRED OF EACH PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE TO A
SUBSTANTIAL TAX UPON THE UNAFFILIATED SELLER OR, IN CERTAIN CASES, UPON AN AGENT
ACTING FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS CLASS [R][LR]
CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY
TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE
PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF
THIS CERTIFICATE OWNED THROUGH SUCH PASS-THROUGH ENTITY BY SUCH DISQUALIFIED
ORGANIZATION, AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR
PURPOSES OF THE PRECEDING SENTENCE, THE TERM "PASS-THROUGH" ENTITY INCLUDES
REGULATED INVESTMENT COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST
FUNDS, PARTNERSHIPS, TRUSTS, ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER
I OF THE CODE APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES. ALL
INTERESTS IN AN "ELECTING LARGE PARTNERSHIP" WILL BE TREATED AS HELD BY
DISQUALIFIED ORGANIZATIONS FOR PURPOSES OF THIS TAX.
<PAGE>
FORM OF RESIDUAL CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
Class [R][LR] Certificate
[Upper][Lower]-Tier REMIC Residual
No: [R][LR]-[ ] Percentage Interest: ___%
This certifies that [____________________________________] (the
"Certificateholder") is the registered owner of a beneficial ownership interest
in a trust (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of October 11, 1999 (the "Pooling and Servicing Agreement") by and
among Wells Fargo Bank, National Association, as servicer (the "Servicer"),
Lennar Partners, Inc., as special servicer ("Special Servicer"), The Chase
Manhattan Bank, as trustee (the "Trustee"), Credit Suisse First Boston Mortgage
Securities Corp., as depositor (the "Depositor") and Norwest Bank Minnesota
National Association, as certificate administrator and custodian (the
"Certificate Administrator"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in the Pooling
and Servicing Agreement. This Certificate is described in the Pooling and
Servicing Agreement and is issued pursuant to and subject to the Pooling and
Servicing Agreement. By acceptance of this Certificate, each Certificateholder
assents to and becomes bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Certificate Administrator shall distribute
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest set forth above of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the
Certificate Administrator in writing by no later than five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Percentage Interest equal to 13.73%, and in all
other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer, the Trustee
and the Certificate Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Servicer, the
Special Servicer, the Trustee and the Certificate Administrator with the consent
of the Holders of Certificates entitled to at least 66 2/3% of the Percentage
Interests of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Administrator, except to the extent described in the Pooling and Servicing
Agreement, or any Affiliate thereof, nor will this Certificate be insured or
guaranteed by any governmental agency. This Certificate is limited in right of
payment to certain collections on the Mortgage Loans, as more specifically set
forth in the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee and Certificate
Administrator in their individual capacities are not liable to the Holder hereof
for any amounts payable under this Certificate or the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee and the Certificate Administrator. Copies of the Pooling and
Servicing Agreement and all amendments thereto will be provided to a prospective
or actual Certificateholder, upon written request and, at the Trustee's
discretion, payment of a reasonable fee for any expenses, to the Trustee at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services -- Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1.
<PAGE>
IN WITNESS WHEREOF, the Certificate Administrator has caused this
Certificate to be duly executed by the manual or facsimile signature of the duly
authorized officer of the Certificate Administrator.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R][LR] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Certificate Administrator
By: ________________________________________
Authorized Officer
Dated: ______________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
1999-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: __________________ By: ________________________________________
Signature
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
CUT-OFF PRIMARY NET STATED
LOAN PROPERTY DATE MONTHLY MORTGAGE SERVICING MORTGAGE LOAN INTEREST MATURITY
NO. NAME BALANCE PAYMENT RATE FEE RATE RATE ACCRUAL METHOD DATE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 Exchange Apartments 58,000,000.00 423,247.00 7.7500 0.1000 7.6500 Actual/360 1/11/2027
5 Tallahassee Mall 47,937,104.45 372,486.00 8.6000 0.0500 8.5500 Actual/360 7/11/2029
8 Hato Rey Tower 38,774,229.10 286,054.23 8.0500 0.0500 8.0000 Actual/360 9/11/2029
9 L'Enfant Plaza 37,204,670.69 265,812.50 7.6400 0.0100 7.6300 Actual/360 10/11/2028
10 Holiday Inn - 35,962,109.12 292,890.88 8.5000 0.0500 8.4500 Actual/360 9/11/2024
Broadway
11 Scholastic Building 33,965,599.81 258,544.57 8.3800 0.0500 8.3300 Actual/360 8/11/2029
12 Blue Hills Office 33,149,000.00 254,652.24 8.4900 0.0500 8.4400 Actual/360 10/11/2029
Park
13 150 William Street 29,440,579.47 215,395.00 7.1750 0.0500 7.1250 Actual/360 6/11/2023
14 Hotel Union 29,332,250.85 201,989.58 7.2200 0.0700 7.1500 Actual/360 5/1/2028
Square/Diva Summary
15 White Lodging Summary 27,938,199.65 209,678.14 7.5400 0.0500 7.4900 Actual/360 8/11/2024
16 SunPark Airpark - 26,976,629.68 229,920.32 9.1800 0.0500 9.1300 Actual/360 9/11/2024
St.Louis
6 Accor - Mountain 26,263,337.04 186,548.00 6.6839 0.0500 6.6339 Actual/360 3/11/2019
Summary
17 Sunset Ridge & 25,482,959.38 187,465.62 8.0200 0.0500 7.9700 Actual/360 9/11/2029
Sunset Peak
Apartments Summary
2 Selig - Third and 25,471,293.65 186,932.23 7.9900 0.0500 7.9400 Actual/360 5/11/2029
Broad
18 Century Centre I 25,470,362.51 184,804.21 7.8700 0.0500 7.8200 Actual/360 8/11/2029
19 401 North Broad 19,888,550.79 156,553.38 8.7500 0.0500 8.7000 Actual/360 9/11/2029
Street
20 Kings Village Corp. 19,693,942.86 154,627.97 9.0500 0.5490 8.5010 Actual/360 9/11/2009
24 Midway Shopping 17,482,834.40 134,435.86 8.4900 0.0500 8.4400 Actual/360 8/11/2029
Center
25 Shops at the Bluffs 17,250,000.00 125,134.34 7.8800 0.0500 7.8300 Actual/360 10/1/2009
26 Seminole Mall 17,100,545.99 119,089.33 7.4000 0.0500 7.3500 Actual/360 2/1/2009
27 Fairfield Suites & 17,000,000.00 125,628.50 7.5000 0.0500 7.4500 Actual/360 11/11/2024
Courtyard by
Marriott Summary
29 Cathedral Building 16,983,230.11 130,354.02 8.4700 0.0500 8.4200 Actual/360 8/11/2029
30 Investor's Business 15,783,654.52 122,995.48 8.1000 0.0300 8.0700 Actual/360 9/11/2024
Daily Building
3 Selig - 3131 Elliot 14,733,395.34 108,127.47 7.9900 0.0500 7.9400 Actual/360 5/11/2029
Building
31 Suburban Lodge 14,652,229.11 116,532.92 8.2500 0.0500 8.2000 Actual/360 1/1/2009
Summary
7 Accor - California 14,018,721.15 93,949.25 6.7213 0.0500 6.6713 Actual/360 3/11/2019
North Summary
32 East Norriton 12,792,149.51 97,877.16 8.4400 0.0500 8.3900 Actual/360 9/11/2029
Crossing
33 K.V. Properties Inc 12,708,740.21 101,664.55 8.4100 0.0600 8.3500 Actual/360 9/11/2024
Summary
34 Periwinkle Place 12,632,053.82 95,926.00 8.3500 0.0500 8.3000 Actual/360 7/11/2029
Shopping Center
35 West Valley Medical 12,454,221.26 93,557.05 8.2100 0.0500 8.1600 Actual/360 3/11/2029
Center
36 Wilshire Westwood 12,214,232.17 87,760.50 7.7500 0.0500 7.7000 Actual/360 5/11/2029
Apartments
21 Capetown Plaza 11,954,129.62 87,604.19 7.2500 0.0500 7.2000 Actual/360 10/1/2008
Shopping Center
37 Cornelius Pass 10,942,637.85 80,270.90 7.9900 0.0500 7.9400 Actual/360 9/11/2029
Business Park
4 Selig - Airborne 10,887,729.43 79,904.37 7.9900 0.0500 7.9400 Actual/360 5/11/2029
Building
38 Town and Country 10,463,154.41 76,314.57 7.9000 0.0500 7.8500 Actual/360 4/11/2029
Office Park
39 Muscarelle Portfolio 10,193,400.27 83,099.73 9.0000 0.0500 8.9500 Actual/360 12/11/2027
Summary
40 IBM Corporate Center 9,963,585.96 74,986.00 8.2300 0.0500 8.1800 Actual/360 3/11/2029
41 Frassetto Properties 9,851,092.68 74,452.87 7.7000 0.0500 7.6500 Actual/360 5/11/2024
Summary
42 Easton Commons Plaza 9,768,689.98 73,024.40 8.1900 0.0500 8.1400 Actual/360 9/11/2029
Shopping Center
43 The Vinegar Factory 9,763,065.58 73,996.71 7.5150 0.0500 7.4650 Actual/360 1/11/2023
(Eli's Market)
44 Holiday Inn & Suites 9,491,225.50 78,362.00 8.7900 0.0500 8.7400 Actual/360 9/11/2024
- Bristol
45 Vilter Manufacturing 9,343,927.00 69,653.00 8.1600 0.0500 8.1100 Actual/360 9/11/2029
Center
46 Lynnwood Corporate 8,491,630.26 58,065.88 7.1700 0.0500 7.1200 Actual/360 8/1/2005
Center
47 Design Center 7,955,776.96 58,701.17 8.0000 0.0500 7.9500 Actual/360 1/1/2009
Industrial Park
48 LaSalle Atrium 7,740,517.99 56,961.64 7.2580 0.0500 7.2080 Actual/360 7/1/2008
49 Meridian Place 7,725,428.77 54,774.45 7.6300 0.0600 7.5700 Actual/360 8/11/2029
Apartments
50 Kirkwood Landing 7,591,806.26 56,562.86 8.1500 0.0500 8.1000 Actual/360 8/11/2029
Apartments
51 Gateway East & West 7,245,489.10 55,079.65 8.3700 0.0500 8.3200 Actual/360 9/11/2029
52 Kanawha Mall 6,993,787.38 58,887.62 9.0300 0.0500 8.9800 Actual/360 9/11/2024
53 Saf Keep Self Storage 6,746,508.94 52,916.10 7.9700 0.0500 7.9200 Actual/360 4/1/2009
54 Binnings Building 6,542,073.51 51,950.48 8.8400 0.0500 8.7900 Actual/360 7/11/2029
55 Commercial Park West 5,996,030.98 44,319.02 8.0700 0.0500 8.0200 Actual/360 9/11/2029
56 Sea Crest at 5,738,989.15 47,792.24 7.6700 0.0600 7.6100 Actual/360 3/1/2009
Amagansett Corp.
57 Park Glen West 5,626,490.85 38,855.54 7.2780 0.0500 7.2280 Actual/360 9/1/2013
Business Ctr
58 Barrington Heights 5,591,484.53 38,075.49 7.0400 0.0500 6.9900 30 /360 12/1/2007
Apartments
59 Stop and Store Self 5,463,681.96 42,449.89 8.0000 0.0500 7.9500 Actual/360 3/1/2009
Storage
60 Crestview Office 5,444,059.97 40,408.88 8.1100 0.0500 8.0600 Actual/360 8/11/2029
61 Grand Cove I 5,310,150.94 35,672.83 6.9300 0.0600 6.8700 30 /360 3/1/2013
Apartments
62 Eagle Food Center 5,194,146.16 38,119.51 7.9900 0.0500 7.9400 Actual/360 8/11/2029
22 Lewis County Mall 5,016,269.93 34,518.12 7.2500 0.0500 7.2000 Actual/360 10/1/2008
63 Pinewood Square 4,996,939.69 38,268.64 8.4500 0.0500 8.4000 Actual/360 9/11/2029
Shopping Center
64 Courtyard by Marriott 4,975,737.12 37,897.84 7.7900 0.0500 7.7400 Actual/360 5/11/2024
65 Forest Lane 4,850,000.00 36,983.39 8.4100 0.0500 8.3600 Actual/360 10/11/2029
Apartments
66 Greenfield Station 4,623,112.73 32,195.66 7.4000 0.0500 7.3500 Actual/360 2/11/2029
Apartments
67 92 State Street 4,570,735.60 31,849.47 7.4000 0.0500 7.3500 Actual/360 1/11/2029
68 Hill Castle 4,432,669.70 32,526.31 7.2500 0.0500 7.2000 Actual/360 9/1/2008
Apartments
69 Redwood City Office 4,319,369.67 33,624.02 8.6200 0.0500 8.5700 Actual/360 7/11/2029
Building
70 2855 Telegraph 4,164,400.49 31,834.18 7.7900 0.0500 7.7400 Actual/360 2/1/2009
Avenue Office
Building
71 Mladen Portfolio 4,096,194.25 33,735.75 8.7600 0.0500 8.7100 Actual/360 9/11/2024
Summary
72 Twin Peaks Square 3,997,321.53 29,378.47 8.0100 0.0500 7.9600 Actual/360 9/11/2029
Shopping Center
73 Countrybrook Estates 3,997,255.57 29,044.43 7.8900 0.0500 7.8400 Actual/360 9/11/2029
74 1674 Broadway 3,989,543.30 40,856.70 9.1200 0.0500 9.0700 Actual/360 9/11/2014
75 Wells Cargo Self 3,987,591.43 30,666.71 7.8500 0.0500 7.8000 Actual/360 1/1/2009
Storage
76 Oasis Apartments 3,940,150.93 28,912.27 7.2500 0.0500 7.2000 Actual/360 9/1/2008
77 Crown Meadows 3,821,086.50 28,978.32 8.3400 0.0500 8.2900 Actual/360 8/11/2029
Shopping Center
78 Embassy Apartments 3,797,635.67 28,869.33 8.3700 0.0500 8.3200 Actual/360 9/11/2029
79 Sandy Ridge 3,791,987.28 28,574.85 8.2600 0.0500 8.2100 Actual/360 6/11/2029
Apartments
80 Southern Medical 3,791,615.37 28,120.00 8.0900 0.0500 8.0400 Actual/360 6/11/2029
Building
81 The Westhampton Bath 3,717,533.56 38,619.68 8.1700 0.0600 8.1100 30/360 11/1/2012
& Tennis Club
82 Candlewick Townhomes 3,341,143.02 24,311.64 7.9000 0.0500 7.8500 Actual/360 8/11/2029
83 Ocean Beach Resort, 3,338,837.58 24,815.05 8.1000 0.0600 8.0400 30 /360 5/1/2009
Ltd.
84 Pacella Park Summary 3,316,498.17 24,895.39 8.2300 0.0500 8.1800 Actual/360 8/11/2009
85 Quality Inn-Sea Oatel 3,247,389.66 28,678.05 9.6250 0.0500 9.5750 Actual/360 10/11/2024
86 St. George Medical 3,094,878.98 25,297.17 8.6600 0.0500 8.6100 Actual/360 8/11/2024
Center
87 Ocean Park Centinela 3,039,269.06 22,146.38 7.8900 0.0500 7.8400 Actual/360 4/1/2009
Office Building
88 Surf Club at Montauk 3,001,400.62 44,710.98 8.6300 0.0600 8.5700 30 /360 6/1/2007
Corp.
89 Ambiance Townhomes 2,997,920.75 21,679.25 7.8400 0.0500 7.7900 Actual/360 9/11/2029
90 Britannia Business 2,984,836.75 22,012.94 8.0000 0.0500 7.9500 Actual/360 2/1/2009
Center
91 Northwest Corporate 2,947,956.98 20,670.55 6.7200 0.0500 6.6700 30 /360 9/1/2008
Park
92 Super 8 Motel 2,937,865.90 27,173.10 10.2200 0.0500 ####### Actual/360 9/11/2024
93 Scandia-Hemman 2,874,797.70 21,027.01 7.8750 0.0500 7.8250 Actual/360 8/1/2008
Apartments
94 Orchard Square 2,598,146.37 18,536.96 7.7000 0.0500 7.6500 Actual/360 9/11/2029
Office Park
95 Murray's Discount 2,584,131.50 18,392.69 7.5800 0.0500 7.5300 Actual/360 7/11/2008
Auto Store Summary
96 Holiday Plaza 2,547,861.99 22,049.26 9.3700 0.0500 9.3200 Actual/360 9/11/2024
97 Lakeside Shopping 2,497,613.30 20,282.53 8.5900 0.0500 8.5400 Actual/360 9/11/2024
Center
98 Palm Desert Business 2,490,956.47 19,711.25 8.2500 0.0500 8.2000 Actual/360 6/11/2024
Center
99 Port Royal Motel 2,487,642.32 25,684.89 9.2200 0.0600 9.1600 Actual/360 8/1/2014
Cooperative
100 The Meadows Square 2,393,088.16 17,276.89 7.8000 0.0500 7.7500 Actual/360 5/1/2009
Mall
101 Civic Center Office 2,389,745.79 19,018.75 8.1120 0.0500 8.0620 Actual/360 11/1/2008
Building
102 Blockbuster Video / 2,298,606.66 17,685.01 8.5000 0.0500 8.4500 Actual/360 9/11/2029
Scotty's Home Summary
103 17290 Preston Road 2,297,594.01 17,295.30 8.2600 0.0500 8.2100 Actual/360 8/1/2009
Office Building
104 Mid-Towne Mobile 2,291,513.56 17,980.92 8.1500 0.0500 8.1000 Actual/360 6/1/2009
Terrace
105 Engler Block 2,272,970.78 19,091.72 9.0000 0.0500 8.9500 Actual/360 9/11/2024
106 Bellevue Tower 2,247,460.31 16,478.34 7.9800 0.0500 7.9300 Actual/360 8/11/2029
Apartments
23 Tampa Shopping Plaza 2,219,207.29 16,263.15 7.2500 0.0500 7.2000 Actual/360 10/1/2008
107 East Mountain 2,097,194.56 16,206.75 8.5400 0.0500 8.4900 Actual/360 7/11/2029
Medical Center
108 Sierra Elm Shopping 1,768,096.91 13,185.60 8.1600 0.0500 8.1100 Actual/360 8/11/2029
Center
109 Valerio Capri 1,628,934.84 12,108.41 8.1300 0.1200 8.0100 Actual/360 9/11/2029
Apartments
110 Gotham Bar & Grill 1,597,517.91 14,108.76 8.7200 0.0500 8.6700 Actual/360 9/11/2019
111 Mission Hills 1,587,009.93 12,053.14 8.3600 0.0500 8.3100 Actual/360 9/11/2029
Village Plaza
112 Clarksdale Commons 1,499,029.73 11,195.27 8.1800 0.0500 8.1300 Actual/360 9/11/2029
Shopping Center
113 King Plaza 1,496,582.06 11,012.50 8.0000 0.0500 7.9500 Actual/360 6/11/2029
114 Goodwill Building 1,399,162.29 10,824.38 8.5600 0.0500 8.5100 Actual/360 9/11/2029
115 Country Village 1,358,425.33 10,916.45 8.3750 0.0500 8.3250 Actual/360 1/1/2009
Apartments
116 12 West 32nd Street 1,290,257.10 8,778.46 7.0500 0.0600 6.9900 Actual/360 12/11/2028
Tenants Corp.
117 4711 Callan Blvd 1,263,632.14 9,355.50 8.0000 0.0500 7.9500 Actual/360 7/1/2008
Apartments
118 Forest Crossing 1,191,175.44 8,493.52 7.6250 0.0500 7.5750 Actual/360 11/1/2008
Medical Building
119 Devonwood Apartments 1,123,954.01 9,249.12 8.7500 0.0500 8.7000 Actual/360 9/11/2009
120 11825 Owners Corp. 1,096,296.83 6,955.92 7.1500 0.0600 7.0900 30/360 12/11/2038
121 Indian Harbor Self 1,093,329.82 8,798.27 8.4200 0.0500 8.3700 Actual/360 3/1/2009
Storage
122 Ansley North 1,065,694.47 8,812.94 9.0800 0.0600 9.0200 30/360 1/1/2012
Cooperative, Inc.
123 West 8th Street 1,059,390.14 8,339.03 8.7500 0.0500 8.7000 Actual/360 9/11/2009
Apartments
124 All Seasons Mini 1,046,423.92 8,490.29 8.5500 0.0500 8.5000 Actual/360 6/1/2009
Storage
125 330 East Jericho 1,043,399.35 8,213.15 8.7500 0.0500 8.7000 Actual/360 9/11/2029
Turnpike
126 Sequoia Apartments 977,362.61 7,969.34 8.5000 0.0500 8.4500 Actual/360 7/1/2009
127 Broadmill Apts 973,849.32 7,840.72 8.3750 0.0500 8.3250 Actual/360 11/1/2008
128 West Wood Village 969,926.74 7,324.85 8.2500 0.0500 8.2000 Actual/360 1/1/2009
Apts
129 Chick Hampton Office 949,447.75 7,439.75 8.7000 0.0500 8.6500 Actual/360 9/11/2009
Building
130 Cambrick On The Park 844,457.99 6,311.23 8.1250 0.0500 8.0750 Actual/360 11/1/2008
Condominiums
131 287 South 6th Avenue 840,605.40 6,560.44 8.0000 0.0500 7.9500 Actual/360 11/1/2008
132 Metro Centre 837,172.07 6,458.87 8.5000 0.0500 8.4500 Actual/360 3/1/2009
133 350 Pleasant Street 792,843.58 5,593.72 7.5000 0.0500 7.4500 Actual/360 9/1/2008
134 Eckerd's Pittsburgh 696,177.79 5,320.51 8.3750 0.0500 8.3250 Actual/360 12/1/2008
135 Azadgan Center 688,167.16 5,764.73 8.8750 0.0500 8.8250 Actual/360 12/1/2008
136 Jeanne Estates 632,896.40 4,913.36 8.5000 0.0500 8.4500 30 /360 7/1/2008
Apartments
137 Starburst Apartments 594,930.78 4,780.93 8.3750 0.0500 8.3250 Actual/360 1/1/2008
138 Josephine Apartments 518,938.66 3,872.12 8.1250 0.0500 8.0750 Actual/360 2/1/2009
139 Valley View 513,151.81 4,074.29 8.2900 0.0500 8.2400 Actual/360 6/11/2009
Apartments
140 1011-1019 Ocean 494,961.08 4,026.14 8.5000 0.0500 8.4500 Actual/360 11/1/2008
Front Walk
141 2555 "D" Street 464,451.96 3,471.17 8.1250 0.0500 8.0750 Actual/360 11/1/2008
142 Tempe Manor Apts 444,932.75 3,642.48 8.3750 0.0500 8.3250 Actual/360 11/1/2008
143 Sophia Warehouse 422,476.98 3,267.88 8.5000 0.0500 8.4500 Actual/360 11/1/2008
144 Betty Jane Apartments 401,251.99 3,227.12 8.3750 0.0500 8.3250 Actual/360 12/1/2008
145 Desert Winds 401,251.98 3,227.12 8.3750 0.0500 8.3250 Actual/360 12/1/2008
Apartments
146 Poolside Apartments 393,821.38 3,167.36 8.3750 0.0500 8.3250 Actual/360 12/1/2008
147 Clark Apartments 372,479.10 2,751.62 8.0000 0.0500 7.9500 Actual/360 11/1/2008
148 1327 2nd Street 347,718.00 2,598.74 8.1250 0.0500 8.0750 Actual/360 11/1/2008
149 Crown Apartments 343,557.76 2,927.54 8.0000 0.0500 7.9500 Actual/360 11/1/2008
150 Park Place-Fradin 339,543.32 2,761.93 8.5000 0.0500 8.4500 Actual/360 11/1/2008
151 Gladstone & Benton 276,229.48 2,342.03 8.0000 0.0500 7.9500 Actual/360 2/1/2009
Apartments
152 Country Manor 241,494.23 1,942.25 8.3750 0.0500 8.3250 Actual/360 12/1/2008
153 Homestead Inn 234,626.63 1,752.29 8.1250 0.0500 8.0750 Actual/360 12/1/2008
Apartments
------------------
==================
1,170,108,234.11
==================
</TABLE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(CONTINUED)
<TABLE>
<CAPTION>
ANTICIPATED ANTICIPATED ORIGINAL REMAINING CREDIT
LOAN PROPERTY REPAYMENT ARD REMAINING AMORTIZATION AMORTIZATION DUE LEASE RVI
NO. NAME DATE LOAN TERM TERM TERM DATE GUARANTOR INSURANCE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Exchange Apartments 1/11/2008 Yes 99 336 336 11
5 Tallahassee Mall 7/11/2009 Yes 117 360 357 11
8 Hato Rey Tower 9/11/2009 Yes 119 360 359 11
9 L'Enfant Plaza 10/11/2008 Yes 108 360 348 11
10 Holiday Inn - 9/11/2009 Yes 119 300 299 11
Broadway
11 Scholastic Building 8/11/2009 Yes 118 360 358 11
12 Blue Hills Office 10/11/2009 Yes 120 360 360 11
Park
13 150 William Street 6/11/2008 Yes 104 300 284 11
14 Hotel Union 5/1/2008 Yes 103 360 343 1
Square/Diva Summary
15 White Lodging Summary 8/11/2009 Yes 118 300 298 11
16 SunPark Airpark - 9/11/2009 Yes 119 300 299 11
St.Louis
6 Accor - Mountain No 233 290 276 11 Accor, S.A. Yes
Summary
17 Sunset Ridge & 9/11/2009 Yes 119 360 359 11
Sunset Peak
Apartments Summary
2 Selig - Third and 5/11/2009 Yes 115 360 358 11
Broad
18 Century Centre I 8/11/2009 Yes 118 360 358 11
19 401 North Broad 9/11/2009 Yes 119 360 359 11
Street
20 Kings Village Corp. No 119 480 479 11
24 Midway Shopping 8/11/2009 Yes 118 360 358 11
Center
25 Shops at the Bluffs No 120 360 360 1
26 Seminole Mall No 112 360 352 1
27 Fairfield Suites & 10/11/2009 Yes 120 300 300 11
Courtyard by
Marriott Summary
29 Cathedral Building 8/11/2009 Yes 118 360 358 11
30 Investor's Business 9/11/2009 Yes 119 300 299 11
Daily Building
3 Selig - 3131 Elliot 5/11/2009 Yes 115 360 358 11
Building
31 Suburban Lodge No 111 300 291 1
Summary
7 Accor - California No 233 337 323 11 Accor, S.A. Yes
North Summary
32 East Norriton 9/11/2009 Yes 119 360 359 11
Crossing
33 K.V. Properties Inc 9/11/2009 Yes 119 300 299 11
Summary
34 Periwinkle Place 7/11/2009 Yes 117 360 357 11
Shopping Center
35 West Valley Medical 3/11/2009 Yes 113 360 353 11
Center
36 Wilshire Westwood 5/11/2009 Yes 115 360 355 11
Apartments
21 Capetown Plaza No 108 300 288 1
Shopping Center
37 Cornelius Pass 9/11/2009 Yes 119 360 359 11
Business Park
4 Selig - Airborne 5/11/2009 Yes 115 360 358 11
Building
38 Town and Country 4/11/2009 Yes 114 360 354 11
Office Park
39 Muscarelle Portfolio 9/11/2009 Yes 119 339 338 11
Summary
40 IBM Corporate Center 3/11/2009 Yes 113 360 353 11
41 Frassetto Properties 5/11/2009 Yes 115 300 295 11
Summary
42 Easton Commons Plaza 9/11/2009 Yes 119 360 359 11
Shopping Center
43 The Vinegar Factory 1/11/2008 Yes 99 300 279 11
(Eli's Market)
44 Holiday Inn & Suites 9/11/2009 Yes 119 300 299 11
- Bristol
45 Vilter Manufacturing 9/11/2009 Yes 119 360 359 11
Center
46 Lynnwood Corporate No 70 360 346 1
Center
47 Design Center No 111 360 351 1
Industrial Park
48 LaSalle Atrium No 105 300 285 1
49 Meridian Place 8/11/2009 Yes 118 360 358 11
Apartments
50 Kirkwood Landing 8/11/2009 Yes 118 360 358 11
Apartments
51 Gateway East & West 9/11/2009 Yes 119 360 359 11
52 Kanawha Mall 9/11/2006 Yes 83 300 299 11
53 Saf Keep Self Storage No 114 287 283 1
54 Binnings Building 7/11/2006 Yes 81 360 357 11
55 Commercial Park West 9/11/2009 Yes 119 360 359 11
56 Sea Crest at No 113 240 233 1
Amagansett Corp.
57 Park Glen West No 167 360 347 1
Business Ctr
58 Barrington Heights No 98 360 338 1
Apartments
59 Stop and Store Self No 113 300 293 1
Storage
60 Crestview Office 8/11/2009 Yes 118 360 358 11
61 Grand Cove I No 161 360 341 1
Apartments
62 Eagle Food Center 8/11/2009 Yes 118 360 358 11
22 Lewis County Mall No 108 360 348 1
63 Pinewood Square 9/11/2009 Yes 119 360 359 11
Shopping Center
64 Courtyard by Marriott 5/11/2009 Yes 115 300 295 11
65 Forest Lane 10/11/2009 Yes 120 360 360 11
Apartments
66 Greenfield Station 2/11/2009 Yes 112 360 352 11
Apartments
67 92 State Street 1/11/2009 Yes 111 360 351 11
68 Hill Castle No 107 300 287 1
Apartments
69 Redwood City Office 7/11/2009 Yes 117 360 357 11
Building
70 2855 Telegraph No 112 300 292 1
Avenue Office
Building
71 Mladen Portfolio 9/11/2009 Yes 119 300 299 11
Summary
72 Twin Peaks Square 9/11/2009 Yes 119 360 359 11
Shopping Center
73 Countrybrook Estates 9/11/2009 Yes 119 360 359 11
74 1674 Broadway 9/11/2014 Yes 179 180 179 11
75 Wells Cargo Self No 111 300 291 1
Storage
76 Oasis Apartments No 107 300 287 1
77 Crown Meadows 8/11/2009 Yes 118 360 358 11
Shopping Center
78 Embassy Apartments 9/11/2009 Yes 119 360 359 11
79 Sandy Ridge 6/11/2009 Yes 116 360 356 11
Apartments
80 Southern Medical 6/11/2009 Yes 116 360 356 11
Building
81 The Westhampton Bath 11/1/2012 Yes 157 180 157 1
& Tennis Club
82 Candlewick Townhomes 8/11/2009 Yes 118 360 358 11
83 Ocean Beach Resort, No 115 360 355 1
Ltd.
84 Pacella Park Summary No 118 360 358 11
85 Quality Inn-Sea Oatel 10/11/2009 Yes 120 300 299 11
86 St. George Medical 8/11/2009 Yes 118 300 298 11
Center
87 Ocean Park Centinela No 114 360 354 1
Office Building
88 Surf Club at Montauk 6/1/2007 Yes 92 120 92 1
Corp.
89 Ambiance Townhomes 9/11/2009 Yes 119 360 359 11
90 Britannia Business No 112 360 352 1
Center
91 Northwest Corporate No 107 300 287 1
Park
92 Super 8 Motel 9/11/2009 Yes 119 300 299 11
93 Scandia-Hemman No 106 360 346 1
Apartments
94 Orchard Square 9/11/2009 Yes 119 360 359 11
Office Park
95 Murray's Discount No 105 360 345 11
Auto Store Summary
96 Holiday Plaza 9/11/2009 Yes 119 300 299 11
97 Lakeside Shopping 9/11/2009 Yes 119 300 299 11
Center
98 Palm Desert Business 7/11/2009 Yes 117 300 296 11
Center
99 Port Royal Motel 8/1/2014 Yes 178 180 178 1
Cooperative
100 The Meadows Square No 115 360 355 1
Mall
101 Civic Center Office No 109 300 289 1
Building
102 Blockbuster Video / 9/11/2009 Yes 119 360 359 11
Scotty's Home Summary
103 17290 Preston Road No 118 360 358 1
Office Building
104 Mid-Towne Mobile No 116 300 296 1
Terrace
105 Engler Block 9/11/2009 Yes 119 300 299 11
106 Bellevue Tower 8/11/2009 Yes 118 360 358 11
Apartments
23 Tampa Shopping Plaza No 108 300 288 1
107 East Mountain 7/11/2009 Yes 117 360 357 11
Medical Center
108 Sierra Elm Shopping 8/11/2009 Yes 118 360 358 11
Center
109 Valerio Capri 9/11/2009 Yes 119 360 359 11
Apartments
110 Gotham Bar & Grill 9/11/2009 Yes 119 240 239 11
111 Mission Hills 9/11/2009 Yes 119 360 359 11
Village Plaza
112 Clarksdale Commons 9/11/2009 Yes 119 360 359 11
Shopping Center
113 King Plaza 6/11/2009 Yes 116 360 356 11
114 Goodwill Building 9/11/2009 Yes 119 360 359 11
115 Country Village No 111 300 291 1
Apartments
116 12 West 32nd Street 12/11/2008 Yes 110 360 351 11
Tenants Corp.
117 4711 Callan Blvd No 105 360 345 1
Apartments
118 Forest Crossing No 109 360 349 1
Medical Building
119 Devonwood Apartments No 119 300 299 11
120 11825 Owners Corp. 12/11/2008 Yes 110 480 471 11
121 Indian Harbor Self No 113 300 293 1
Storage
122 Ansley North No 147 360 327 1
Cooperative, Inc.
123 West 8th Street No 119 360 359 11
Apartments
124 All Seasons Mini No 116 300 296 1
Storage
125 330 East Jericho 9/11/2009 Yes 119 360 359 11
Turnpike
126 Sequoia Apartments No 117 290 287 1
127 Broadmill Apts No 109 300 289 1
128 West Wood Village No 111 360 351 1
Apts
129 Chick Hampton Office No 119 360 359 11
Building
130 Cambrick On The Park No 109 360 349 1
Condominiums
131 287 South 6th Avenue No 109 300 289 1
132 Metro Centre No 113 360 353 1
133 350 Pleasant Street No 107 360 347 1
134 Eckerd's Pittsburgh No 110 360 350 1
135 Azadgan Center No 110 300 290 1
136 Jeanne Estates No 105 360 345 1
Apartments
137 Starburst Apartments No 99 300 291 1
138 Josephine Apartments No 112 360 352 1
139 Valley View No 116 300 296 11
Apartments
140 1011-1019 Ocean No 109 300 289 1
Front Walk
141 2555 "D" Street No 109 360 349 1
142 Tempe Manor Apts No 109 285 274 1
143 Sophia Warehouse No 109 360 349 1
144 Betty Jane Apartments No 110 300 290 1
145 Desert Winds No 110 300 290 1
Apartments
146 Poolside Apartments No 110 300 290 1
147 Clark Apartments No 109 360 349 1
148 1327 2nd Street No 109 360 349 1
149 Crown Apartments No 109 240 229 1
150 Park Place-Fradin No 109 300 289 1
151 Gladstone & Benton No 112 240 232 1
Apartments
152 Country Manor No 110 300 290 1
153 Homestead Inn No 110 360 350 1
Apartments
</TABLE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(CONTINUED)
LOAN PROPERTY SUBJECT TO
NO. NAME DEFEASANCE LOAN
- --------------------------------------------------------------------------------
1 Exchange Apartments Yes CSFB
5 Tallahassee Mall Yes CSFB
8 Hato Rey Tower Yes CSFB
9 L'Enfant Plaza Yes CSFB
10 Holiday Inn - Yes CSFB
Broadway
11 Scholastic Building Yes CSFB
12 Blue Hills Office Yes CSFB
Park
13 150 William Street Yes CSFB
14 Hotel Union Yes MSMC
Square/Diva Summary
15 White Lodging Summary Yes CSFB
16 SunPark Airpark - Yes CSFB
St.Louis
6 Accor - Mountain Yes CSFB
Summary
17 Sunset Ridge & Yes CSFB
Sunset Peak
Apartments Summary
2 Selig - Third and Yes CSFB
Broad
18 Century Centre I Yes CSFB
19 401 North Broad Yes CSFB
Street
20 Kings Village Corp. Yes CSFB
24 Midway Shopping Yes CSFB
Center
25 Shops at the Bluffs Yes MSMC
26 Seminole Mall Yes MSMC
27 Fairfield Suites & Yes CSFB
Courtyard by
Marriott Summary
29 Cathedral Building Yes CSFB
30 Investor's Business Yes CSFB
Daily Building
3 Selig - 3131 Elliot Yes CSFB
Building
31 Suburban Lodge Yes MSMC
Summary
7 Accor - California Yes CSFB
North Summary
32 East Norriton Yes CSFB
Crossing
33 K.V. Properties Inc Yes CSFB
Summary
34 Periwinkle Place Yes CSFB
Shopping Center
35 West Valley Medical Yes CSFB
Center
36 Wilshire Westwood Yes CSFB
Apartments
21 Capetown Plaza Yes MSMC
Shopping Center
37 Cornelius Pass Yes CSFB
Business Park
4 Selig - Airborne Yes CSFB
Building
38 Town and Country Yes CSFB
Office Park
39 Muscarelle Portfolio Yes CSFB
Summary
40 IBM Corporate Center Yes CSFB
41 Frassetto Properties Yes CSFB
Summary
42 Easton Commons Plaza Yes CSFB
Shopping Center
43 The Vinegar Factory Yes CSFB
(Eli's Market)
44 Holiday Inn & Suites Yes CSFB
- Bristol
45 Vilter Manufacturing Yes CSFB
Center
46 Lynnwood Corporate No MSMC
Center
47 Design Center Yes MSMC
Industrial Park
48 LaSalle Atrium No CSFB
49 Meridian Place Yes CSFB
Apartments
50 Kirkwood Landing Yes CSFB
Apartments
51 Gateway East & West Yes CSFB
52 Kanawha Mall Yes CSFB
53 Saf Keep Self Storage Yes MSMC
54 Binnings Building Yes CSFB
55 Commercial Park West Yes CSFB
56 Sea Crest at Yes CSFB
Amagansett Corp.
57 Park Glen West No CSFB
Business Ctr
58 Barrington Heights No MSMC
Apartments
59 Stop and Store Self Yes MSMC
Storage
60 Crestview Office Yes CSFB
61 Grand Cove I No CSFB
Apartments
62 Eagle Food Center Yes CSFB
22 Lewis County Mall Yes MSMC
63 Pinewood Square Yes CSFB
Shopping Center
64 Courtyard by Marriott Yes CSFB
65 Forest Lane Yes CSFB
Apartments
66 Greenfield Station Yes CSFB
Apartments
67 92 State Street Yes CSFB
68 Hill Castle No CSFB
Apartments
69 Redwood City Office Yes CSFB
Building
70 2855 Telegraph Yes MSMC
Avenue Office
Building
71 Mladen Portfolio Yes CSFB
Summary
72 Twin Peaks Square Yes CSFB
Shopping Center
73 Countrybrook Estates Yes CSFB
74 1674 Broadway Yes CSFB
75 Wells Cargo Self Yes MSMC
Storage
76 Oasis Apartments No CSFB
77 Crown Meadows Yes CSFB
Shopping Center
78 Embassy Apartments Yes CSFB
79 Sandy Ridge Yes CSFB
Apartments
80 Southern Medical Yes CSFB
Building
81 The Westhampton Bath No CSFB
& Tennis Club
82 Candlewick Townhomes Yes CSFB
83 Ocean Beach Resort, Yes CSFB
Ltd.
84 Pacella Park Summary Yes CSFB
85 Quality Inn-Sea Oatel Yes CSFB
86 St. George Medical Yes CSFB
Center
87 Ocean Park Centinela Yes MSMC
Office Building
88 Surf Club at Montauk No CSFB
Corp.
89 Ambiance Townhomes Yes CSFB
90 Britannia Business Yes MSMC
Center
91 Northwest Corporate No MSMC
Park
92 Super 8 Motel Yes CSFB
93 Scandia-Hemman No CSFB
Apartments
94 Orchard Square Yes CSFB
Office Park
95 Murray's Discount Yes MSMC
Auto Store Summary
96 Holiday Plaza Yes CSFB
97 Lakeside Shopping Yes CSFB
Center
98 Palm Desert Business Yes CSFB
Center
99 Port Royal Motel Yes CSFB
Cooperative
100 The Meadows Square Yes MSMC
Mall
101 Civic Center Office No CSFB
Building
102 Blockbuster Video / Yes CSFB
Scotty's Home Summary
103 17290 Preston Road Yes MSMC
Office Building
104 Mid-Towne Mobile Yes MSMC
Terrace
105 Engler Block Yes CSFB
106 Bellevue Tower Yes CSFB
Apartments
23 Tampa Shopping Plaza Yes MSMC
107 East Mountain Yes CSFB
Medical Center
108 Sierra Elm Shopping Yes CSFB
Center
109 Valerio Capri Yes CSFB
Apartments
110 Gotham Bar & Grill Yes CSFB
111 Mission Hills Yes CSFB
Village Plaza
112 Clarksdale Commons Yes CSFB
Shopping Center
113 King Plaza Yes CSFB
114 Goodwill Building Yes CSFB
115 Country Village No CSFB
Apartments
116 12 West 32nd Street Yes CSFB
Tenants Corp.
117 4711 Callan Blvd No CSFB
Apartments
118 Forest Crossing No CSFB
Medical Building
119 Devonwood Apartments Yes CSFB
120 11825 Owners Corp. Yes CSFB
121 Indian Harbor Self Yes MSMC
Storage
122 Ansley North No CSFB
Cooperative, Inc.
123 West 8th Street Yes CSFB
Apartments
124 All Seasons Mini Yes MSMC
Storage
125 330 East Jericho Yes CSFB
Turnpike
126 Sequoia Apartments No CSFB
127 Broadmill Apts No CSFB
128 West Wood Village No CSFB
Apts
129 Chick Hampton Office Yes CSFB
Building
130 Cambrick On The Park No CSFB
Condominiums
131 287 South 6th Avenue No CSFB
132 Metro Centre Yes CSFB
133 350 Pleasant Street No CSFB
134 Eckerd's Pittsburgh No CSFB
135 Azadgan Center No CSFB
136 Jeanne Estates No CSFB
Apartments
137 Starburst Apartments No CSFB
138 Josephine Apartments No CSFB
139 Valley View Yes CSFB
Apartments
140 1011-1019 Ocean No CSFB
Front Walk
141 2555 "D" Street No CSFB
142 Tempe Manor Apts No CSFB
143 Sophia Warehouse No CSFB
144 Betty Jane Apartments No CSFB
145 Desert Winds No CSFB
Apartments
146 Poolside Apartments No CSFB
147 Clark Apartments No CSFB
148 1327 2nd Street No CSFB
149 Crown Apartments No CSFB
150 Park Place-Fradin No CSFB
151 Gladstone & Benton No CSFB
Apartments
152 Country Manor No CSFB
153 Homestead Inn No CSFB
Apartments
<PAGE>
<TABLE>
<CAPTION>
ORIGINAL CUT-OFF
PRINCIPAL DATE
LOAN CONTROL ZIP LOAN PRINCIPAL
# # LOANS PROPERTY NAME ADDRESS CITY STATE CODE BALANCE LOAN BALANCE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 001 CSFB Exchange Apartments 25 Broad Street New York NY 10004 58,000,000 58,000,000
2 002 CSFB Selig - Third and Broad 2901 Third Avenue Seattle WA 98121 25,500,000 25,471,294
3 003 CSFB Selig - 3131 Elliot 3131 Elliot Avenue Seattle WA 98121 14,750,000 14,733,395
Building
4 004 CSFB Selig - Airborne Building 3101 Western Avenue Seattle WA 98121 10,900,000 10,887,729
5 005 CSFB Tallahassee Mall 2415 North Monroe Tallahassee FL 32303 48,000,000 47,937,104
Street
6 006 CSFB Accor - Mountain Summary Various Various CO Various 26,775,758 26,263,337
6 006A CSFB Accor - Mountain Motel 6 2433 So. 800 West Woods Cross UT 84087 6,689,444
#1205
6 006B CSFB Accor - Mountain Motel 6 3900 E. Mulberry Fort Collins CO 80524 4,546,883
#293
6 006C CSFB Accor - Mountain Motel 6 1600 Cedar Street Raton NM 57740 4,120,309
#279
6 006D CSFB Accor - Mountain Motel 6 9920 West 49th Avenue Wheat Ridge CO 80033 3,732,516
#1016
6 006E CSFB Accor - Mountain Motel 6 3400 Will Rodgers Santa Rosa NM 88453 3,635,567
#273 Drive
6 006F CSFB Accor - Mountain Motel 6 416 West Appleway Coeur ID 83814 3,538,619
#267 Avenue D'Alene
7 007 CSFB Accor - California North Various Various CA Various 14,210,728 14,018,721
Summary
7 007A CSFB Accor - California North 2101 Loveridge Road Pittsburg CA 94565 3,925,242
Motel 6 #318
7 007B CSFB Accor - California North 16958 State Route 58 Mojave CA 93501 3,313,516
Motel 6 #359
7 007C CSFB Accor - California North 250 South Walnut Road Turlock CA 95380 3,288,027
Motel 6 #287
7 007D CSFB Accor - California North 42899 Big Bear Big Bear CA 92315 2,650,813
Motel 6 #369 Boulevard Lake
7 007E CSFB Accor - California North 16901 Stoddard Wells Victorville CA 92392 841,123
Motel 6 #106 Road
8 008 CSFB Hato Rey Tower 268 Munoz Rivera San Juan PR 00918 38,800,000 38,774,229
Avenue
9 009 CSFB L'Enfant Plaza 470-490 L'Enfant Washington DC 20024 37,500,000 37,204,671
Plaza SW/955
L'Enfant Plaza SW
10 010 CSFB Holiday Inn - Broadway 1260 Broadway New York NY 10001 36,000,000 35,962,109
11 011 CSFB Scholastic Building 555 Broadway New York NY 10012 34,000,000 33,965,600
12 012 CSFB Blue Hills Office Park 150 Royall Street Canton MA 02021 33,149,000 33,149,000
13 013 CSFB 150 William Street 150 William Street New York NY 10038 30,000,000 29,440,579
14 014 MSMC Hotel Union Square/Diva Various San CA 94103 29,698,120 29,332,251
Summary Francisco
14 014A MSMC Hotel Union Square 114 Powell Street San CA 94103 18,820,708
Francisco
14 014B MSMC Hotel Diva 440 Geary Street San CA 94103 10,511,543
Francisco
15 015 CSFB White Lodging Summary Various Various IN Various 28,000,000 27,938,200
15 015A CSFB Residence Inn - 350 West New York Indianapolis IN 46204 8,982,348
Indianapolis Street
15 015B CSFB Courtyard - Indianapolis 320 North Senate Indianapolis IN 46204 7,433,667
Avenue
15 015C CSFB Residence Inn - Hammond 7740 Corinne Drive Hammond IN 46323 4,274,359
15 015D CSFB Courtyard - Hammond 7730 Corinne Drive Hammond IN 46323 3,840,728
15 015E CSFB Fairfield Inn - Hammond 7720 Corinne Drive Hammond IN 46323 3,407,098
<PAGE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
16 016 CSFB SunPark Airpark - St.Louis 4607 Airflight Drive Edmundson MO 63134 27,000,000 26,976,630
17 017 CSFB Sunset Ridge & Sunset Peak Various Various CO Various 25,500,000 25,482,959
Apartments Summary
17 017A CSFB Sunset Ridge Apartments 8300 Sheridan Westminster CO 80003 16,988,640
Boulevard
17 017B CSFB Sunset Peak Apartments 475 East Russell Thornton CO 80229 8,494,320
Boulevard
18 018 CSFB Century Centre I 1450 Fashion Island San Mateo CA 94404 25,500,000 25,470,363
Boulevard
19 019 CSFB 401 North Broad Street 401 North Broad Philadelphia PA 19123 19,900,000 19,888,551
Street
20 020 CSFB Kings Village Corp. 1270/1275 E. 51st Brooklyn NY 11234 19,700,000 19,693,943
St; 1199/1200 E.
53rd St; 1165 E.
54th St
21 021 MSMC Capetown Plaza Shopping 790 Iyanough Road Hyannis MA 02601 12,120,000 11,954,130
Center
22 022 MSMC Lewis County Mall 151 N.E. Hampe Way Chehalis WA 98532 5,060,000 5,016,270
23 023 MSMC Tampa Shopping Plaza 8207-8325 North Tampa FL 33604 2,250,000 2,219,207
Florida Ave.
24 024 CSFB Midway Shopping Center 1460-1576 West St. Paul MN 55104 17,500,000 17,482,834
University Avenue
25 025 MSMC Shops at the Bluffs 3610 & 3650 Austin Colorado CO 80918 17,250,000 17,250,000
Bluffs Pkwy&4284 N. Springs
Academy Blvd.
26 026 MSMC Seminole Mall 8050 113th Street Seminole FL 33772 17,200,000 17,100,546
North
27 027 CSFB Fairfield Suites & Various Various AZ Various 17,000,000 17,000,000
Courtyard by Marriott
Summary
27 027A CSFB Courtyard by Marriott - 17010 N Scottsdale Phoenix AZ 85255 10,274,725
Scottsdale Road
27 027B CSFB Fairfield Suites 17020 N Scottsdale Phoenix AZ 85255 6,725,275
Road
29 029 CSFB Cathedral Building 1100 J Street Sacramento CA 95814 17,000,000 16,983,230
30 030 CSFB Investor's Business Daily 12655 Beatrice Avenue Los Angeles CA 90066 15,800,000 15,783,655
Building
31 031 MSMC Suburban Lodge Summary Various Various Various Various 14,780,000 14,652,229
31 031A MSMC Suburban Lodge - Dallas 9355 Forest Lane Dallas TX 75243 3,717,582
31 031B MSMC Suburban Lodge - Roswell 1175 Hembree Road Roswell GA 30076 3,469,743
31 031C MSMC Suburban Lodge - Greenville 408-Mauldin Road Greenville SC 29605 2,676,659
31 031D MSMC Suburban Lodge - Dayton 8981 Kingsridge Drive Dayton OH 45458 2,478,388
31 031E MSMC Suburban Lodge - Forest 363 Forest Parkway Forest Park GA 30297 2,309,857
Park
32 032 CSFB East Norriton Crossing DeKalb Pike (Rte East PA 19401 12,800,000 12,792,150
202) and Norriton
<PAGE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Germantown Pike
33 033 CSFB K.V. Properties Inc Various Various CA Various 12,721,250 12,708,740
Summary
33 033A CSFB Market Place #6 - Long 14103 Ramona Baldwin Park CA 91706 4,687,886
Beach Value Plus Retail Boulevard
Center
33 033B CSFB K.V. Property Co.- Compton 420 S. Long Beach Compton CA 90221 2,797,247
Boulevard
33 033C CSFB Market Place #7 - Long 2038 East 10th Street Long Beach CA 90804 2,191,593
Beach 1
33 033D CSFB Market Place #12 - Value 4308 East Slauson Maywood CA 90270 1,823,205
Plus Food Warehouse Avenue
33 033E CSFB Market Place #9 - Long 421 Pacific Avenue Long Beach CA 90802 1,208,810
Beach 2
34 034 CSFB Periwinkle Place Shopping 2075 Periwinkle Way Sanibel FL 33957 12,650,000 12,632,054
Center
35 035 CSFB West Valley Medical Center 5353 and 5363 Balboa Encino CA 91316 12,500,000 12,454,221
Boulevard
36 036 CSFB Wilshire Westwood 10530 and 10540 Los Angeles CA 90068 12,250,000 12,214,232
Apartments Wilshire Boulevard
37 037 CSFB Cornelius Pass Business 2000 NW Cornelius Hillsboro OR 97124 10,950,000 10,942,638
Park Pass Road
38 038 CSFB Town and Country Office 702-1078 Town and Orange CA 92868 10,500,000 10,463,154
Park Country Road
39 039 CSFB Muscarelle Portfolio Various Various NJ Various 10,200,000 10,193,400
Summary
39 039A CSFB 1201 Valley Brook 1201 Valley Brook Lyndhurst NJ 07071 6,203,452
Avenue
39 039B CSFB Park Ridge Marriott Ground 300 Brae Boulevard Park Ridge NJ 07656 3,989,948
Lease
40 040 CSFB IBM Corporate Center 34 Maple Avenue Parsippany NJ 07058 10,000,000 9,963,586
41 041 CSFB Frassetto Properties Various Various NJ Various 9,900,000 9,851,093
Summary
41 041A CSFB 11 High Point Drive 11 High Point Drive Wayne NJ 07470 3,309,351
Township
41 041B CSFB 707 Executive Drive 707 Executive Drive Clarkstown NY 10989 2,424,292
41 041C CSFB 709 Executive Drive 709 Executive Drive Clarkstown NY 10989 2,193,407
41 041D CSFB 6 Highpoint Drive 6 Highpoint Drive Wayne NJ 07470 1,924,042
Township
42 042 CSFB Easton Commons Plaza 8470-8590 Highway 6 Houston TX 77095 9,775,000 9,768,690
Shopping Center North
43 043 CSFB The Vinegar Factory (Eli's 1411 Third Avenue New York NY 10028 10,000,000 9,763,066
Market)
44 044 CSFB Holiday Inn & Suites - 3005 Linden Drive Bristol VA 24202 9,500,000 9,491,226
Bristol
45 045 CSFB Vilter Manufacturing Center 5555 South Packard Cudahy WI 53110 9,350,000 9,343,927
Avenue
46 046 MSMC Lynnwood Corporate Center 19401 40th Avenue Lynnwood WA 98036 8,580,000 8,491,63
West
47 047 MSMC Design Center Industrial 3445 Winton Place Henreitta NY 14623 8,000,000 7,955,777
Park
48 048 CSFB LaSalle Atrium 401 S. LaSalle Chicago IL 60605 7,875,000 7,740,518
Street
49 049 CSFB Meridian Place Apartments 2000 North Meridian Tallahassee FL 32303 7,735,000 7,725,429
Road
50 050 CSFB Kirkwood Landing Apartments 9850 South Kirkwood Houston TX 77099 7,600,000 7,591,806
51 051 CSFB Gateway East & West 6188 and 6192 Oxon Oxon Hill MD 20745 7,250,000 7,245,489
Hill
<PAGE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Road
52 052 CSFB Kanawha Mall 163 Kanawha Mall Charleston WV 25387 7,000,000 6,993,787
53 053 MSMC Saf Keep Self Storage 655 3rd Street Oakland CA 94607 6,850,000 6,746,509
54 054 CSFB Binnings Building 3000 NW 125th Street Miami FL 33167 6,550,000 6,542,074
55 055 CSFB Commercial Park West 2300 and 2327 Durham NC 27713 6,000,000 5,996,031
Englert Drive and
4915 Prospectus Drive
56 056 CSFB Sea Crest at Amagansett Montauk Highway and Amagansett NY 11930 5,810,000 5,738,989
Corp. Navahoe Lane
57 057 CSFB Park Glen West Business Ctr 4700 and 4800 Park St. Louis MN 55416 5,680,000 5,626,491
Glen Road Park
58 058 MSMC Barrington Heights 3028 Chamblee-Tucker Chamblee GA 30341 5,700,000 5,591,485
Apartments Road
59 059 MSMC Stop and Store Self Storage 1700 Shore Parkway Brooklyn NY 11214 5,500,000 5,463,682
60 060 CSFB Crestview Office 3111 North Tustin Orange CA 92865 5,450,000 5,444,060
Avenue
61 061 CSFB Grand Cove I Apartments 100 - 200 Grand Cove Edgewater NJ 07020 5,400,000 5,310,151
Way
62 062 CSFB Eagle Food Center 1414 North Division Morris IL 60450 5,200,000 5,194,146
Street (State Hwy 47)
63 063 CSFB Pinewood Square Shopping Royall Avenue and Goldsboro NC 27534 5,000,000 4,996,940
Center Spence Avenue
64 064 CSFB Courtyard by Marriott 10152 Palm River Road Brandon FL 33619 5,000,000 4,975,737
65 065 CSFB Forest Lane Apartments 9660 Forest Lane Dallas TX 75243 4,850,000 4,850,000
66 066 CSFB Greenfield Station 700 Keswick Circle Trotwood OH 45426 4,650,000 4,623,113
Apartments
67 067 CSFB 92 State Street 92 State Street Boston MA 02109 4,600,000 4,570,736
68 068 CSFB Hill Castle Apartments 1431 Jackson Street Oakland CA 94612 4,500,000 4,432,670
69 069 CSFB Redwood City Office 2055-2075 Woodside Redwood City CA 94062 4,325,000 4,319,370
Building Road
70 070 MSMC 2855 Telegraph Avenue 2855 Telegraph Avenue Berkeley CA 94704 4,200,000 4,164,400
Office Building
71 071 CSFB Mladen Portfolio Summary Various Various CT Various 4,100,000 4,096,194
71 071A CSFB 56 Webster Street 56 Webster Street Hartford CT 06105 221,844
71 071B CSFB 270 Laurel Street 270 Laurel Street Hartford CT 06105 1,109,221
71 071C CSFB 117-145 South Marshall 117-145 South Hartford CT 06105 871,531
Street Marshall Street
71 071D CSFB 154-160A Collins Street 154-160A Collins Hartford CT 06105 586,302
Street
71 071E CSFB 243-255 Laurel Street 243-255 Laurel Street Hartford CT 06105 459,534
71 071F CSFB 21 Evergreen Avenue 21 Evergreen Avenue Hartford CT 06105 308,997
71 071G CSFB 360 Laurel Street 360 Laurel Street Hartford CT 06105 301,074
71 071H CSFB 252 Laurel Street 252 Laurel Street Hartford CT 06105 237,690
72 072 CSFB Twin Peaks Square Shopping 800 South Hover Road Longmont CO 80501 4,000,000 3,997,322
Center
73 073 CSFB Countrybrook Estates 1718 Bridgeview Lane Louisville KY 40242 4,000,000 3,997,256
74 074 CSFB 1674 Broadway 1674 Broadway New York NY 10019 4,000,000 3,989,543
<PAGE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
75 075 MSMC Wells Cargo Self Storage 224 North McPherson Orange CA 92869 4,025,000 3,987,591
Road
76 076 CSFB Oasis Apartments 351 Turk Street San CA 94102 4,000,000 3,940,151
Francisco
77 077 CSFB Crown Meadows Shopping 7614 & 7616 Culebra San Antonio TX 78251 3,825,000 3,821,087
Center Road
78 078 CSFB Embassy Apartments 1613 Harvard Street, Washington DC 20009 3,800,000 3,797,636
N.W.
79 079 CSFB Sandy Ridge Apartments 175 Carney's NJ 08069 3,800,000 3,791,987
Pennsgrove-Auburn Point
Road
80 080 CSFB Southern Medical Building 9131 Piscataway Road Clinton MD 20735 3,800,000 3,791,615
81 081 CSFB The Westhampton Bath & 231 Dune Road Westhampton NY 11978 4,000,000 3,717,534
Tennis Club Beach
82 082 CSFB Candlewick Townhomes 1155 Paredes Line City of TX 78521 3,345,000 3,341,143
Road Brownsville
83 083 CSFB Ocean Beach Resort, Ltd. 108 South Emerson Montauk NY 11954 3,350,000 3,338,838
Avenue
84 084 CSFB Pacella Park Summary Various Various MA Various 3,320,000 3,316,498
84 084A CSFB 21 Pacella Park Drive 21 Pacella Park Drive Randolph MA 02368 2,349,186
84 084B CSFB 35 Pacella Park Drive 35 Pacella Park Drive Randolph MA 02368 967,312
85 085 CSFB Quality Inn-Sea Oatel 7123 South Virginia Nags Head NC 27959 3,250,000 3,247,390
Dare Trail
86 086 CSFB St. George Medical Center 6620 Coyle Avenue Carmichael CA 95608 3,100,000 3,094,879
87 087 MSMC Ocean Park Centinela 3435 Ocean Park Santa Monica CA 90405 3,050,000 3,039,269
Office Building Boulevard
88 088 CSFB Surf Club at Montauk Corp. Surfside Place Montauk NY 11954 3,586,000 3,001,401
89 089 CSFB Ambiance Townhomes 13210 Old Richmond Houston TX 77083 3,000,000 2,997,921
Road
90 090 MSMC Britannia Business Center 3043-3075 Research Richmond CA 95806 3,000,000 2,984,837
Drive
91 091 MSMC Northwest Corporate Park 800 & 808 Fidalgo Seattle WA 98108 3,000,000 2,947,957
St. & 780 S.
Michigan St.
92 092 CSFB Super 8 Motel 52825 U.S.-31 North South Bend IN 46637 2,940,000 2,937,866
93 093 CSFB Scandia-Hemman Apartments 411 Gibbsboro Road Lindenwold NJ 08021 2,900,000 2,874,798
94 094 CSFB Orchard Square Office Park 1212 York Road Lutherville MD 21093 2,600,000 2,598,146
95 095 MSMC Murray's Discount Auto Various Chicago IL Various 2,610,000 2,584,132
Store Summary
95 095A MSMC Murray's Discount Auto 6319 S. Western Chicago IL 60616 886,357
Store Avenue
95 095B MSMC Murray's Discount Auto 55 E. 111th Street Chicago IL 60628 886,357
Store
95 095C MSMC Murray's Discount Auto 4719 Cottage Grove Chicago IL 60615 811,417
Store
96 096 CSFB Holiday Plaza 1424-1430 Richmond Staten NY 10314 2,550,000 2,547,862
Avenue Island
97 097 CSFB Lakeside Shopping Center 4453 Liberty Avenue Vermillion OH 44089 2,500,000 2,497,613
98 098 CSFB Palm Desert Business Center 41-865 Boardwalk Palm Desert CA 92211 2,500,000 2,490,956
99 099 CSFB Port Royal Motel 16 Navy Road Montauk NY 11954 2,500,000 2,487,642
Cooperative
<PAGE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
100 100 MSMC The Meadows Square Mall 3801 W. 34th Street Sioux Falls SD 57106 2,400,000 2,393,088
101 101 CSFB Civic Center Office 8300 Utica Avenue Rancho CA 91730 2,415,000 2,389,746
Building Cucamonga
102 102 CSFB Blockbuster Video / Various Various FL Various 2,300,000 2,298,607
Scotty's Home Summary
102 102A CSFB Scotty's Home Improvement 333 State Road 19 Palatka FL 32178 1,554,940
Store North
102 102B CSFB Blockbuster Video 142 Malabar Road SW Palm Bay FL 32908 743,667
103 103 MSMC 17290 Preston Road Office 17290 Preston Road Dallas TX 75252 2,300,000 2,297,594
Building
104 104 MSMC Mid-Towne Mobile Terrace 1117 Baldwin Street Salinas CA 93908 2,300,000 2,291,514
105 105 CSFB Engler Block 1335 W. Highway 76 Branson MO 65616 2,275,000 2,272,971
106 106 CSFB Bellevue Tower Apartments 305 South Bellevue Memphis TN 38104 2,250,000 2,247,460
Boulevard
107 107 CSFB East Mountain Medical 780 South Main Street Great MA 01230 2,100,000 2,097,195
Center Barrington
108 108 CSFB Sierra Elm Shopping Center 431 - 455 Grass Auburn CA 95603 1,770,000 1,768,097
Valley Highway
109 109 CSFB Valerio Capri Apartments 14360 Valerio Street Van Nuys CA 91405 1,630,000 1,628,935
110 110 CSFB Gotham Bar & Grill 12 East 12th Street New York NY 10003 1,600,000 1,597,518
111 111 CSFB Mission Hills Village Plaza 15501-15535 Mission CA 91345 1,588,000 1,587,010
Devonshire Street Hills
112 112 CSFB Clarksdale Commons 820-844 S. State Clarksdale MS 38614 1,500,000 1,499,030
Shopping Center Street
113 113 CSFB King Plaza 3025 Waughtown Street Winston-Salem NC 27107 1,500,000 1,496,582
114 114 CSFB Goodwill Building 1700 Fillmore Street San CA 94115 1,400,000 1,399,162
Francisco
115 115 CSFB Country Village Apartments 975 Sheldon Road Channelview TX 77530 1,370,000 1,358,425
116 116 CSFB 12 West 32nd Street 12-14 West 32nd New York NY 10001 1,300,000 1,290,257
Tenants Corp. Street
117 117 CSFB 4711 Callan Blvd Apartments 4711 Callan Blvd Daly City CA 94015 1,275,000 1,263,632
118 118 CSFB Forest Crossing Medical 9100 Forest Crossing The TX 77381 1,200,000 1,191,175
Building Drive Woodlands
119 119 CSFB Devonwood Apartments 5108 Brentwood Stair Fort Worth TX 76112 1,125,000 1,123,954
Road
120 120 CSFB 11825 Owners Corp. 118 East 25th Street New York NY 10010 1,100,000 1,096,297
121 121 MSMC Indian Harbor Self Storage 136-140 Tomahawk Indian FL 32937 1,100,000 1,093,330
Drive Harbor Beach
122 122 CSFB Ansley North Cooperative, 1705 Monroe Drive Atlanta GA 30324 1,087,500 1,065,694
Inc. N.E.
123 123 CSFB West 8th Street Apartments 2971 West 8th Street Los Angeles CA 90005 1,060,000 1,059,390
124 124 MSMC All Seasons Mini Storage 800 North "K" Street Needles CA 92363 1,050,000 1,046,424
125 125 CSFB 330 East Jericho Turnpike 330 East Jericho Smithtown NY 90804 1,044,000 1,043,399
Turnpike
126 126 CSFB Sequoia Apartments 15188 - 15212 Hesperia CA 92345 980,000 977,363
Sequoia Avenue
127 127 CSFB Broadmill Apts 109 E. Broadway Road Tempe AZ 85282 984,000 973,849
128 128 CSFB West Wood Village Apts 201 North Garden Ave. Sierra Vista AZ 85635 975,000 969,927
<PAGE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
129 129 CSFB Chick Hampton Office One Chick Springs Greenville SC 29609 950,000 949,448
Building Road
130 130 CSFB Cambrick On The Park 4016 McKinney Avenue Dallas TX 75204 850,000 844,458
Condominiums
131 131 CSFB 287 South 6th Avenue 287 South 6th Avenue City of CA 91746 850,000 840,605
Industry
132 132 CSFB Metro Centre 1940 Garnet Avenue San Diego CA 92109 840,000 837,172
133 133 CSFB 350 Pleasant Street 350 Pleasant Street Grass Valley CA 95945 800,000 792,844
134 134 CSFB Eckerd's Pittsburgh 1915-1921 East Pittsburgh PA 15203 700,000 696,178
Carson Street
135 135 CSFB Azadgan Center 2610-2614 East Corona Del CA 92625 694,000 688,167
Pacific Coast Highway Mar
136 136 CSFB Jeanne Estates Apartments 5201 Spradling Avenue Ft. Smith AR 72904 639,000 632,896
137 137 CSFB Starburst Apartments 7655 Moonmist Drive Houston TX 77036 600,000 594,931
138 138 CSFB Josephine Apartments 12722-12738 Garden Grove CA 92841 521,500 518,939
Josephine Street
139 139 CSFB Valley View Apartments 209 Wolcott Street & Waterbury CT 06705 515,000 513,152
26-32 Farragut Street
140 140 CSFB 1011-1019 Ocean Front Walk 1011-1019 Ocean Los Angeles CA 90291 500,000 494,961
Front Walk
141 141 CSFB 2555 "D" Street 2555 "D" Street Sparks NV 89431 467,500 464,452
142 142 CSFB Tempe Manor Apts 1403 East 8th Street Tempe AZ 85281 450,000 444,933
143 143 CSFB Sophia Warehouse 7100 Sophia Avenue Van Nuys CA 91406 425,000 422,477
144 144 CSFB Betty Jane Apartments 11762-11792 E. 16th Aurora CO 80010 405,000 401,252
Avenue
145 145 CSFB Desert Winds Apartments 21420-30 N. 23rd Phoenix AZ 85027 405,000 401,252
Ave.
146 146 CSFB Poolside Apartments 1702 Paris Street Aurora CO 80010 397,500 393,821
147 147 CSFB Clark Apartments 4102-10 Clark Avenue Kansas City MO 64111 375,000 372,479
148 148 CSFB 1327 2nd Street 1327 2nd Street Livermore CA 94550 350,000 347,718
149 149 CSFB Crown Apartments 475 and 485 Linden Reno NV 89502 350,000 343,558
Street
150 150 CSFB Park Place-Fradin 18600-18604 Ventura Los Angeles CA 91356 343,000 339,543
Boulevard
151 151 CSFB Gladstone & Benton 534 Gladstone & 524 Kansas City MO 64124 280,000 276,229
Apartments Benton
152 152 CSFB Country Manor 16801 North 26th Phoenix AZ 85032 243,750 241,494
Street
153 153 CSFB Homestead Inn Apartments 276 Seventh Avenue St. FL 33701 236,000 234,627
Northeast Petersburg
</TABLE>
<PAGE>
EXHIBIT C-1
FORM OF QIB INVESTMENT REPRESENTATION LETTER -
QUALIFIED INSTITUTIONAL BUYER
Norwest Bank Minnesota,
National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS) --
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 1999-C1
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
This letter is delivered pursuant to the Confidential Offering Circular
(the "Offering Circular") dated November 4, 1999 and to Section 5.02 of the
Pooling and Servicing Agreement dated as of October 11, 1999 (the "Pooling and
Servicing Agreement"), by and among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Wells Fargo Bank, National Association, as
Servicer, Lennar Partners, Inc., as Special Servicer, Norwest Bank Minnesota,
National Association, as Certificate Administrator and Custodian, and The Chase
Manhattan Bank, as Trustee, on behalf of the holders of Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1999-C1 (the "Certificates") in connection with the transfer by
______________ to the undersigned (the "Purchaser") of $____________ aggregate
Certificate Balance of Class ____ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
assigned to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. The Purchaser is a "qualified institutional buyer" within the meaning of
Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933, as amended
(the "Securities Act"). The Purchaser is aware that the transfer is being made
in reliance on Rule 144A, and the Purchaser has had the opportunity to obtain
the information required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account, (b) for resale to "qualified
institutional buyers" in transactions under Rule 144A, or (c) in the case of
Class G or Class H Certificates, for resale to persons that are not "U.S.
persons" within the meaning of Regulation S under the Securities Act, and not in
any event with the view to, or for resale in connection with, any distribution
thereof. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions), as expressed herein.
3. The Purchaser has reviewed the Offering Circular and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder, or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Administrator and all
Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. The Purchaser is a U.S. Person (as defined below) and it has attached
hereto an Internal Revenue Service ("IRS") Form W-9 (or successor form).
For this purpose, "U.S. Person" means (i) a citizen or resident of the
United States, (ii) a corporation or partnership created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia, (iii) an estate the income of which is includible in gross income for
United States tax purposes, regardless of its source, or (iv) a trust if a court
within the United States is able to exercise primary supervision of the
administration of the trust and one or more such U.S. Persons have the authority
to control all substantial decisions of the trust.
8. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), or (b) a person acting on behalf of or using the assets
of any such Plan (including an entity whose underlying assets include Plan
assets by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of the Certificates by such insurance company would be
eligible for the exemptive relief from the prohibited transaction provisions of
ERISA and Section 4975 of the Code that is available under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a) or
(b) above, such Purchaser is required to provide to the Certificate
Administrator an opinion of counsel in form and substance satisfactory to the
Certificate Administrator and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not
constitute or result in a non-exempt prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law and will not subject the Trustee, the
Certificate Administrator, the Servicer, the Special Servicer, the Initial
Purchaser or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
opinion of counsel shall not be at the expense of the Depositor, the Servicer,
the Special Servicer, the Trustee or the Trust Fund.
10. In the event that we purchase any of the Certificates, we will acquire
Certificates having a minimum purchase price of not less than $25,000 [in the
case of the Class O Certificates, $100,000] for our own account or for any
separate account for which we are acting.
IN WITNESS WHEREOF, the Purchaser hereby executes this Qualified
Institutional Buyer Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By: ________________________________________
Name:
Title:
<PAGE>
EXHIBIT C-2
FORM OF REGULATION S INVESTMENT REPRESENTATION LETTER -
NON-U.S. PERSON
Norwest Bank Minnesota,
National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS) --
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 1999-C1
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
This letter is delivered pursuant to the Confidential Offering Circular
(the "Offering Circular") dated November 12, 1999 and to Section 5.02 of the
Pooling and Servicing Agreement dated as of October 11, 1999 (the "Pooling and
Servicing Agreement"), by and among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Wells Fargo Bank, National Association, as
Servicer, Lennar Partners, Inc., as Special Servicer, Norwest Bank Minnesota,
National Association, as Certificate Administrator and Custodian, and The Chase
Manhattan Bank, as Trustee, on behalf of the holders of Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1999-C1 (the "Certificates") in connection with the transfer by
[___________________________________] to the undersigned (the "Purchaser") of
$____________ aggregate Certificate Balance of Class [G] [H] Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. The Purchaser is not a "U.S. person" within the meaning of Regulation S
(a "Non-U.S. Person") under the Securities Act of 1933, as amended (the
"Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account, (b) for resale to Non-U.S. Persons
in transactions under Regulation S or (c) for resale to "qualified institutional
buyers" in transactions under Rule 144A under the Securities Act, and not in any
event with a view to, or for resale in connection with, any distribution
thereof. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions), as expressed herein.
3. The Purchaser has reviewed the Offering Circular and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder, or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Administrator and all
Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. The Purchaser is not a U.S. Person and under applicable law in effect on
the date hereof, no taxes will be required to be withheld by the Trustee (or its
agent) with respect to distributions to be made on the Certificate. The
Purchaser has attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the beneficial owner of the
Certificate and states that such Purchaser is not a U.S. Person or (ii) two duly
executed copies of IRS Form 4224 (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that interest and
original issue discount on the Certificate and Permitted Investments is, or is
expected to be, effectively connected with a U.S. trade or business. The
Purchaser agrees to provide to the Certificate Administrator 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 Administrator 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 Administrator.
For this purpose, "U.S. Person" means (i) a citizen or resident of the
United States, (ii) a corporation or partnership organized in or under the laws
of the United States, any state thereof or the District of Columbia, (iii) an
estate the income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) a trust if a court within the United
States is able to exercise primary supervision of the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust.
8. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each, a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of the Certificates by such insurance company would be
eligible for the exemptive relief from the prohibited transaction provisions of
ERISA and Section 4975 of the Code that is available under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a) or
(b) above, such Purchaser is required to provide to the Certificate
Administrator an opinion of counsel in form and substance satisfactory to the
Certificate Administrator and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not
constitute or result in a non-exempt prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law and will not subject the Trustee, the
Certificate Administrator, the Servicer, the Special Servicer, the Initial
Purchaser or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
opinion of counsel shall not be at the expense of the Depositor, the Servicer,
the Special Servicer, the Trustee or the Trust Fund.
10. In the event that we purchase any of the Certificates, we will acquire
Certificates having a minimum purchase price of not less than $25,000 for our
own account or for any separate account for which we are acting.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this Regulation S
Investment Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By: ________________________________________
Name:
Title:
<PAGE>
EXHIBIT C-3
FORM OF INVESTMENT REPRESENTATION LETTER -
INSTITUTIONAL ACCREDITED INVESTOR
Norwest Bank Minnesota,
National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS) --
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 1999-C1
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of October 11, 1999 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities Corp.,
as Depositor, Wells Fargo Bank, National Association, as Servicer, Lennar
Partners, Inc., as Special Servicer, Norwest Bank Minnesota, National
Association, as Certificate Administrator and Custodian, and The Chase Manhattan
Bank, as Trustee, on behalf of the holders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1999-C1 (the "Certificates") in connection with the transfer by
[______________________________________] to the undersigned (the "Purchaser") of
$____________ aggregate Certificate Balance of Class O Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the "Act")),
or an entity in which all of the equity owners are accredited investors within
the meaning of Rule 501(a)(1), (2) or (3) under the Act (an "Accredited
Investor") and we are acquiring the Certificates for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Act, and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Certificates, and we and any accounts for which we are acting
are each able to bear the economic risk of our or their investment.
2. (A) any purchase of the Certificate by the Purchaser will be for its own
account or for the account of one or more other accredited investors or as
fiduciary for the account of one or more trusts, each of which is an "accredited
investor" within the meaning of Rule 501(a)(7) under the Act and for each of
which the Purchaser exercises sole investment discretion or (B) the Purchaser is
a "bank," within the meaning of Section 3(a)(2) of the Act, or a "savings and
loan association" or other institution described in Section 3(a)(5)(A) of the
Act that is acquiring the Certificate as fiduciary for the account of one or
more institutions for which the Purchaser exercises sole investment discretion.
3. The Purchaser has received and reviewed the Confidential Offering
Circular relating to the Certificate (the "Offering Circular") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each a "Certificateholder"), in
all respects as if it were a signatory thereto. This undertaking is made for the
benefit of the Trust, the Certificate Administrator and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. The Purchaser is a U.S. Person (as defined below) and it has attached
hereto an Internal Revenue Service ("IRS") Form W-9 (or successor form).
For this purpose, "U.S. Person" means (i) a citizen or resident of the
United States, (ii) a corporation or partnership created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia, (iii) an estate the income of which is includible in gross income for
United States tax purposes, regardless of its source or (iv) a trust if a court
within the United States is able to exercise primary supervision of the
administration of the trust and one or more U.S. Persons have the authority to
control all substantial decisions of the trust.
8. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), or (b) a person acting on behalf of or using the assets
of any such Plan (including an entity whose underlying assets include Plan
assets by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of the Certificates by such insurance company would be
eligible for the exemptive relief from the prohibited transaction provisions of
ERISA and Section 4975 of the Code that is available under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a) or
(b) above, such Purchaser is required to provide to the Certificate
Administrator an opinion of counsel in form and substance satisfactory to the
Certificate Administrator and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not
constitute or result in a non-exempt prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, and will not subject the Trustee, the
Certificate Administrator, the Servicer, the Special Servicer, the Initial
Purchaser or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
opinion of counsel shall not be at the expense of the Depositor, the Servicer,
the Special Servicer, the Trustee or the Trust Fund.
10. In the event that we purchase any of the Certificates, we will acquire
Certificates having a minimum purchase price of not less than $100,000 for our
own account or for any separate account for which we are acting.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this Accredited Investor
Investment Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By: ________________________________________
Name:
Title:
<PAGE>
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[Name of Officer], being first duly sworn, deposes and says:
1. That [he] [she] is a [Title of Officer] of [Name of Transferee] (the
"Transferee"), a [description of type of entity] duly organized and existing
under the laws of the State [Commonwealth] of [ ], on behalf of which he makes
this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-C1,
Class [R] [LR] Certificates (the "Class [R] [LR] Certificate") (i) is not a
Disqualified Organization, an ERISA Prohibited Holder, or a Non-U.S. Person (as
defined in Article I of the Pooling and Servicing Agreement, dated as of October
11, 1999, by and among Credit Suisse First Boston Mortgage Securities Corp., as
Depositor, Wells Fargo Bank, National Association, as Servicer, Lennar Partners,
Inc., as Special Servicer, The Chase Manhattan Bank, as Trustee, and Norwest
Bank Minnesota, National Association, as Certificate Administrator and Custodian
(the "Pooling and Servicing Agreement") and will endeavor to remain other that a
Disqualified Organization and other than a Non-U.S. Person for so long as it
retains its ownership interest in the Class [R] [LR] Certificate, or (ii) is
acquiring the Class [R] [LR] Certificate for the account of, or as agent
(including as a broker, nominee, or other middleman) for, a Person other than a
Disqualified Organization or a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they have come
due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit, and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit 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 as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a 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."
9. The Transferee has reviewed, and agrees to be bound by and to abide by,
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
19__.
[NAME OF TRANSFEREE]
By: ________________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the 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__.
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
Norwest Bank Minnesota,
National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS) --
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 1999-C1
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1999-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]
________________________________________
Name:
<PAGE>
EXHIBIT E
LIST OF MEZZANINE LOANS
Loan No. Loan Name
1 Exchange Apartments
2 Selig - Third and Broad
3 Selig - 3131 Elliot Building
4 Selig - Airborne Building
9 L'Enfant Participation
14 Hotel Union Square/Diva
<PAGE>
EXHIBIT F
FORM OF REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota,
National Association, as Custodian
1031 10th Avenue SE
Minneapolis, Minnesota 55414
Attention: Corporate Trust Services (CMBS) --
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 1999-C1
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-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 October 11, 1999 (the "Pooling and Servicing Agreement"), by and among
Credit Suisse First Boston Mortgage Securities Corp., as depositor, Lennar
Partners, Inc. (the undersigned), as special servicer (the "Special Servicer"),
Wells Fargo Bank, National Association (the undersigned), as servicer (the
"Servicer"), The Chase Manhattan Bank, as trustee (the "Trustee"), and you, as
Certificate Administrator, the undersigned hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Custodian with respect to the following described Loan for the reason
indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please
specify which:
Reason for requesting file (or portion thereof):
______1. Loan paid in full. The [Servicer] [Special Servicer] hereby
certifies that all amounts received in connection with the Loan have been
or will be credited to the Collection Account pursuant to the Pooling and
Servicing Agreement.
______2. The Loan is being foreclosed.
______3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, unless the Loan has been
paid in full, in which case the Mortgage File (or such portion thereof) will be
retained by us permanently, unless the Loan is being foreclosed, in which case
the Mortgage File (or such portion thereof) will be returned when no longer
required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[WELLS FARGO BANK, NATIONAL ASSOCIATION]
[LENNAR PARTNERS, INC.]
By: ________________________________________
Name:
Title:
<PAGE>
<TABLE>
EXHIBIT G-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
COMPARATIVE FINANCIAL STATUS REPORT
AS OF ____________________
<CAPTION>
S4 S57 S58 P7 P8 P57 S72 S69 S70 S83 S84
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
Original Underwriting
Information
----------------------------------
Basis Year
----------------------------------
Last Current
Property Allocated Paid Allocated Financial
Prospectus Inspect Loan Thru Debt Info as % Total $ (1)
ID City State Date Amount Date Service of Date Occ Revenue NCF DSCR
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
yy/mm yy/mm
----- -----
List all properties currently in deal with or without information largest to smallest loan
This report should reflect the information provided in the CSSA Property and Loan file
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
Total: $ $ WA $ $ WA
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
- ---------- ---- ----- -------- --------- ---- --------- --------- --- ------- --- ----
- -----------------
<FN>
(1) DSCR should match to Operating Statement and is normally calculated using
NCF/Debt Service times the allocated loan percentage.
</FN>
</TABLE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
COMPARATIVE FINANCIAL STATUS REPORT
AS OF ____________________
continued
P65 P64 P59 P94 P95 P58 P57 P52 P92 P93
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
2nd Preceding Annual Operating Preceding Annual Operating
Information Information
- ------------------------------------ ------------------------------------
as of __________ Normalized as of __________ Normalized
- ---------------- ---------- ---------------- ----------
Financial Financial
Info as of % Total $ (1) Info as of % Total $ (1)
Date Occ Revenue NCF DSCR Date Occ Revenue NCF DSCR
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
yy/mm yy/mm
----- -----
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
WA $ $ WA WA $ $ WA
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
- ---------- --- ------- --- ---- ---------- --- ------- --- ----
- -----------------
(1) DSCR should match to Operating Statement and is normally calculated using
NCF/Debt Service times the allocated loan percentage.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
COMPARATIVE FINANCIAL STATUS REPORT
AS OF ____________________
continued
P72 P73 P66 P96 P97 (2)
- -------- ------ --- ------- --- ---- --- ------- ----
Most Recent Financial
Information Net Change
- ----------------------------------------- ----------
*normalized or actual Preceding & Basis
- --------------------- -----------------
%
FS Start FS End % Total $ (1) % Total (1)
Date Date Occ Revenue NCF DSCR Occ Revenue DSCR
- -------- ------ --- ------- --- ---- --- ------- ----
yy/mm yy/mm --- ------- --- ---- --- ------- ----
- -------- ------ --- ------- --- ---- --- ------- ----
- -------- ------ --- ------- --- ---- --- ------- ----
- -------- ------ --- ------- --- ---- --- ------- ----
- -------- ------ --- ------- --- ---- --- ------- ----
- -------- ------ --- ------- --- ---- --- ------- ----
WA $ $ WA WA $ WA
- -------- ------ --- ------- --- ---- --- ------- ----
- -------- ------ --- ------- --- ---- --- ------- ----
- -----------------
(1) DSCR should match to Operating Statement and is normally calculated using
NCF/Debt Service times the allocated loan percentage.
(2) Net change should compare the latest year to the underwriting year.
<PAGE>
<TABLE>
EXHIBIT G-2-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
DELINQUENT LOAN STATUS REPORT
AS OF _______________________
<CAPTION>
S4 S55 S61 S57 S58 S62 or S63 P8 P7 P37 P39 P38
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- -----------
(a) (b) (c) (d) (e)=a+b+c+d
--------- --------- -------- -------- -----------
Other
Short Name Scheduled Total P&I Total Advances
Prospectus (When Property Sq Ft or Paid Thru Principal Advances Expenses (Taxes & Total
ID Appropriate) Type City State Units Date Balance To Date To Date Escrow) Exposure
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
LOANS IN FORECLOSURE AND NOT REO
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
90 + DAYS
DELINQUENT
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
60 DAYS DELINQUENT
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
30 DAYS DELINQUENT
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
Current & at Special Servicer
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
- ---------- ------------ -------- ---- ----- -------- --------- --------- --------- -------- -------- ----------
</TABLE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
DELINQUENT LOAN STATUS REPORT
AS OF _______________________
continued
P25 P10 P11 P58 or P73 P92 or P96 P93 or P97
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
Current Current
Monthly Interest Maturity LTM NCF LTM DSCR
P&I Rate Date Date LTM NCF (NCF)
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ------- -------- -------- ------- ------- --------
- ---------------------
FCL - Foreclosure
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or
normalized YTD
* Workout Strategy should match the CSSA Loan file using abbreviated words
in place of a code number such as (FCL - In Foreclosure, MOD -
Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP
Payment Plan, TBD - To be determined etc...). It is possible to combine
the status codes if the loan is going in more than one direction. (i.e.
FCL/Mod, BK/Mod, BK/FCL/DPO)
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
*** How to determine the cap rate is agreed upon by underwriter and special
servicer - to be provided by a third party.
<PAGE>
<TABLE>
EXHIBIT G-2-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
DELINQUENT LOAN STATUS REPORT
AS OF _______________
<CAPTION>
S4 S55 S61 S57 S58 P74 P75 P35 P77 P79
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
(f)=P38/P81 (g)=(.90*f)-e
------------- -------------
Appraisal Loss using Total
Short Name Value using BPO or 90% Appr. Appraisal
Prospectus (When Property NOI & Cap Valuation Internal or Reduction Transfer Resolution
ID Appropriate) Type City State Rate Date Value** BPO (f) Realized Date Date
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
LOANS IN FORECLOSURE AND NOT REO
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
90+ DAYS
DELINQUENT
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
60 DAYS DELINQUENT
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
30 DAYS DELINQUENT
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
Current & at Special Servicer
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
- ---------- ------------ -------- ---- ----- ----------- --------- --------- ---------- --------- -------- ----------
</TABLE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
DELINQUENT LOAN STATUS REPORT
AS OF _______________
continued
P42 P82 P76
- ----- -------- -------- --------
FCL Expected
Start FCL Sale Workout
Date Date Strategy Comments
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- ----- -------- -------- --------
- -------------------
FCL - Foreclosure
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or
normalized YTD
* Workout Strategy should match the CSSA Loan file using abbreviated words
in place of a code number such as (FCL - In Foreclosure, MOD -
Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP -
Payment Plan, TBD - To be determined etc. . . ). It is possible to combine
the status codes if the loan is going in more than one direction. (i.e.
FCL/Mod, BK/Mod, BK/FCL/DPO)
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
*** How to determine the cap rate is agreed upon by underwriter and special
servicer - to be provided by a third party.
<PAGE>
<TABLE>
EXHIBIT G-3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
HISTORICAL LOAN MODIFICATION REPORT
AS OF ________________________
<CAPTION>
S4 S57 S58 P49 P48 P7* P7* P50* P50* P25* P25*
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ----
Balance
Mod/ Extention When Sent Balance at the # Mths
Prospectus Extension per Docs or Effect to Special Effective Date of for Rate New Old New
ID City State Flag Servicer Date Servicer Rehabilitation Old Rate Change Rate P&1 P&1
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ----
THIS REPORT IS HISTORICAL
Information is as of modification. Each line it should not change in the future. Only new modifications should be added.
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
Total for all Loans:
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- ---------- ---- ----- --------- ----------- ------ ---------- ----------------- -------- -------- ---- --- ---
- -----------------------
<FN>
* The information in these columns in from a particular point in time and
should not change on this report once assigned. Future modification done
on the same loan are additions to the report.
(1) Actual principal loss taken by bonds.
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
</FN>
</TABLE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
HISTORICAL LOAN MODIFICATION REPORT
AS OF ________________________
continued
P11* P11* P47
- -------- -------- --------- ------------ ------------- -------
(2) Est.
Future
Total # Interest Loss
Mths for (1) Realized to Trust $
Old New Change of Loss to (Rate
Maturity Maturity Mod Trust $ Reductions) COMMENT
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- -------- -------- --------- ------------ ------------- -------
- ----------------------
* The information in these columns in from a particular point in time and
should not change on this report once assigned. Future modification done
on the same loan are additions to the report.
(1) Actual principal loss taken by bonds.
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
<PAGE>
<TABLE>
EXHIBIT G-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
AS OF ____________________
<CAPTION>
S4 S55 S61 S57 S58 P45/P3 P75 P45 P7 P37
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
(c)=b/a (a) (b) (d) (e) (f)
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
Latest
Short Name Received Appraisal or Effect Net Amt
Prospectus (When Property From Brokers Date of Sales Received Scheduled Total P&I
ID Appropriate) Type City State Liquidation Opinion Liquidation Price from Sale Balance Advanced
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
Total all Loans:
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
Current Month Only:
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
- ---------- ------------ -------- ---- ----- ----------- --------- ----------- ----- --------- --------- ---------
</TABLE>
<TABLE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
AS OF ____________________
continued
<CAPTION>
P39+P38
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
(g) (h) (i)=d-(f+g+h) (k)=i-e (m) (n)+k+m (o)=n/e
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
Date Minor
Servicing Loss Adj Total Loss Loss % of
Total Fees Actual Losses Passed Minor Adj Passed with Scheduled
Expenses Expense Net Proceeds Passed thru thru to Trust thru Adjustment Balance
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------- --------- ------------ ------------- ------ -------- ------ ----------- ---------
- -------------------------
<FN>
(h) Servicing Fee Expense is the work out fee charged by the special servicer.
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT G-5-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
REO STATUS REPORT
AS OF _______________
<CAPTION>
S4 S55 S61 S57 S58 S62 on S63 P8 P7 P37 P39 P38
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
(a) (b) (c) (d)
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
Allocated Loan Other
Short Name Amount or Total P&I Total Advances
Prospectus (When Property Sq Ft or Paid Thru Scheduled Loan Advances To Expenses To (Taxes &
ID Appropriate) Type City State Units Date Balance Date Date Escrow)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- ---------- ------------ -------- ---- ----- -------- --------- -------------- ----------- ----------- --------
- --------------------------
<FN>
REOs that are more than one loan should use the Allocated Loan Amount and
prorate all advances and expenses.
(1) Use the following codes: App.-Appraisal, BPO-Brokers Opinion, Int-Internal
Value.
</FN>
</TABLE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
REO STATUS REPORT
AS OF _______________
continued
P25 P11 P58 or P73 P93 or P97
- ----------- ------- -------- ------- --------
(e)=a+b+c+d (a)
- ----------- ------- -------- ------- --------
Current
Total Monthly Maturity LTM NCF LTM DSCR
Exposure P&I Date Date (NCF)
- ----------- ------- -------- ------- --------
- ----------- ------- -------- ------- --------
- ----------- ------- -------- ------- --------
- ----------- ------- -------- ------- --------
- ----------- ------- -------- ------- --------
- ----------- ------- -------- ------- --------
- ----------- ------- -------- ------- --------
- ----------- ------- -------- ------- --------
- --------------------------
REOs that are more than one loan should use the Allocated Loan Amount and
prorate all advances and expenses.
(1) Use the following codes: App.-Appraisal, BPO-Brokers Opinion, Int-Internal
Value.
<PAGE>
<TABLE>
EXHIBIT G-5-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
REO STATUS REPORT
AS OF ____________________
<CAPTION>
S4 S55 S61 S57 S58 P74 P75 P35 P77
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
(f)=(k/j) (g) (h)=(.90*g)-e
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
Appraisal
Value BPO or Appraisal Total
Short Name using NOI Internal BPO or Loss using Appraisal
(When Property Valuation & Cap Value Internal 90% Appr. or Reduction Transfer
Prospectus ID Appropriate) Type City State Date Rate Source** Value BPO (f) Realized Date
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
- ------------- ------------ -------- ---- ----- --------- --------- --------- --------- ------------ --------- --------
</TABLE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
REO-STATUS REPORT
AS OF ____________________
continued
P82 P79
- ----------- ---------- --------
REO Pending
Acquisition Resolution
Date Date Comments
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- ----------- ---------- --------
- -----------
REOs that are more than one loan should use the Allocated Loan Amount and
prorate all advances and expenses.
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
<PAGE>
<TABLE>
EXHIBIT G-6
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
SERVICE WATCH LIST
AS OF ______________________________
<CAPTION>
S4 S55 S61 S57 S58 P7 P8 P11 P93 P97
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
PRECEDING MOST
SHORT NAME SCHEDULED PAID FISCAL YR RECENT
PROSPECTUS (WHEN PROPERTY LOAN THRU MATURITY DSCR DSCR COMMENT/ACTION
ID APPROPRIATE) TYPE CITY STATE BALANCE DATE DATE NCF NCF TO BE TAKEN
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
List all loans on watch list and reason sorted in descending balance order.
Should not include loans that are specially serviced.
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
Total $
- ---------- ------------ -------- ---- ----- ------- ---- -------- --------- ------ ---------------
</TABLE>
<PAGE>
<TABLE>
EXHIBIT G-7
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
OPERATING STATEMENT ANALYSIS REPORT
AS OF ____________________
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
------------
Prospectus Loan ID
------------ ------------ ------------
Sch Bal/Paid to Date/Allocated %
------------ ------------ ------------ ----------- ------------ ------------ ------------
Property Name
------------ ------------ ------------ ----------- ------------ ------------ ------------
Property Type
------------ ------------ ------------ ----------- ------------ ------------ ------------
Property Address, City, State
------------ ------------ ------------ ----------- ------------ ------------ ------------
Net Rentable Square Feet
------------ ------------
Year Built/Year Renovated
------------ ------------ ------------ ----------- ------------
Year of Operations Underwriting 1994 1995 1996 Trailing
------------ ------------ ------------ ----------- ------------
Occupancy Rate*
------------ ------------ ------------ ----------- ------------
Average Rental Rate
------------ ------------ ------------ ----------- ------------
* Occupancy rates are year end or the ending date of the financial statement for the period.
</TABLE>
<TABLE>
<CAPTION>
INCOME: No. of Mos.
------------
Number of Mos. Prior Year Current Yr.
------------ ------------ ------------ ----------- ------------ ------------ ------------
Period Ended Underwriting 1994 1995 1996 97 Trailing** 1996-Base 1996-1995
------------
Statement Classification Base Line Normalized Normalized Normalized as of / /97 Variance Variance
------------ ------------ ------------ ----------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Rental Income (Category 1)
------------ ------------ ------------ ----------- ------------ ------------ ------------
Rental Income (Category 2)
------------ ------------ ------------ ----------- ------------ ------------ ------------
Rental Income (Category 3)
------------ ------------ ------------ ----------- ------------ ------------ ------------
Pass Through/Escalations
------------ ------------ ------------ ----------- ------------ ------------ ------------
Other Income
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
Effective Gross Income $0.00 $0.00 $0.00 $0.00 $0.00 % %
------------ ------------ ------------ ----------- ------------ ------------ ------------
Normalized-Full year financial statements that have been reviewed by the underwriter or
Servicer
** Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
------------ ------------ ------------ ----------- ------------ ------------ ------------
Real Estate Taxes
------------ ------------ ------------ ----------- ------------ ------------ ------------
Property Insurance
------------ ------------ ------------ ----------- ------------ ------------ ------------
Utilities
------------ ------------ ------------ ----------- ------------ ------------ ------------
General and Administration
------------ ------------ ------------ ----------- ------------ ------------ ------------
Repairs and Maintenance
------------ ------------ ------------ ----------- ------------ ------------ ------------
Management Fees
------------ ------------ ------------ ----------- ------------ ------------ ------------
Payroll & Benefits Expense
------------ ------------ ------------ ----------- ------------ ------------ ------------
Advertising & Marketing
------------ ------------ ------------ ----------- ------------ ------------ ------------
Professional Fees
------------ ------------ ------------ ----------- ------------ ------------ ------------
Other Expenses
------------ ------------ ------------ ----------- ------------ ------------ ------------
Ground Rent
------------ ------------ ------------ ----------- ------------ ------------ ------------
Total Operating Expenses $0.00 $0.00 $0.00 $0.00 $0.00 % %
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
Operating Expense Ratio
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
Net Operating Income $0.00 $0.00 $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
Leasing Commissions
------------ ------------ ------------ ----------- ------------ ------------ ------------
Tenant Improvements
------------ ------------ ------------ ----------- ------------ ------------ ------------
Replacement Reserve
------------ ------------ ------------ ----------- ------------ ------------ ------------
Total capital Items $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
N.O.I. After Capital Items $0.00 $0.00 $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
Debt Service (per Servicer) $0.00 $0.00 $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------ ------------ ------------
Cash Flow after debt service $0.00 $0.00 $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
DSCR: (NOI/Debt Service)
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
(1)DSCR: (after reserves\Cap exp.)
------------ ------------ ------------ ----------- ------------ ------------ ------------
------------ ------------ ------------ ----------- ------------ ------------ ------------
Source of Financial Data
------------ ------------ ------------ ----------- ------------ ------------ ------------
(i.e. operating statements, financial statements, tax return, other)
<FN>
Notes and Assumptions
- ------------------------------------- --------------------------------------------------------------------------------------
The years shown above will roll always showing a three year history. 1996 is the current year financials; 1995 is the prior
year financials.
This report may vary depending on the property type and because of the way information may vary in each borrowers statement.
Rental Income needs to be broken down, differently whenever possible for each property type as follows: Retail: 1) Base
Rent 2) Percentage rents on cashflow
Hotel: 1) Room Revenue 2) Food/Beverage Nursing home: 1) Private 2) Medicaid 3) Medicare
INCOME: COMMENT
EXPENSE: COMMENT
CAPITAL ITEMS: COMMENT
(1) Used in the Comparative Financial Status Report
</FN>
</TABLE>
<PAGE>
<TABLE>
EXHIBIT G-8
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C1
FORM OF NOI ADJUSTMENT WORKSHEET FOR "YEAR"
AS OF ____________________
<CAPTION>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
------------
LB Control Number
------------ ------------ ------------
Current Balance/Paid to Date
------------ ------------ ------------ ----------- ------------
Property Name
------------ ------------ ------------ ----------- ------------
Property Type
------------ ------------ ------------ ----------- ------------
Property Address, City, State
------------ ------------ ------------ ----------- ------------
Net Rentable Square Feet
------------ ------------
Year Built/Year Renovated
------------ ------------ ------------
Year of Operations Borrower Adjustment Normalized
------------ ------------ ------------
Occupancy Rate*
------------ ------------ ------------
Average Rental Rate
------------ ------------ ------------
* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME:
Number of Mos. "Year"
------------ ------------ ------------ ----------- ------------
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
------------ ------------ ------------ ----------- ------------
Rental Income (Category 1)
------------ ------------ ------------ ----------- ------------
Rental Income (Category 2)
------------ ------------ ------------ ----------- ------------
Rental Income (Category 3)
------------ ------------ ------------ ----------- ------------
Pass Through/Escalations
------------ ------------ ------------ ----------- ------------
Other Income
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
Effective Gross Income $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------
Normalized - Full year financial statements that have been reviewed by the Servicer
OPERATING EXPENSES:
------------ ------------ ------------ ----------- ------------
Real Estate Taxes
------------ ------------ ------------ ----------- ------------
Property Insurance
------------ ------------ ------------ ----------- ------------
Utilities
------------ ------------ ------------ ----------- ------------
General and Administration
------------ ------------ ------------ ----------- ------------
Repairs and Maintenance
------------ ------------ ------------ ----------- ------------
Management Fees
------------ ------------ ------------ ----------- ------------
Payroll & Benefits Expense
------------ ------------ ------------ ----------- ------------
Advertising & Marketing
------------ ------------ ------------ ----------- ------------
Professional Fees
------------ ------------ ------------ ----------- ------------
Other Expenses
------------ ------------ ------------ ----------- ------------
Ground Rent
------------ ------------ ------------ ----------- ------------
Total Operating Expenses $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
Operating Expense Ratio
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
Net Operating Income $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
Leasing Commissions
------------ ------------ ------------ ----------- ------------
Tenant Improvements
------------ ------------ ------------ ----------- ------------
Replacement Reserve
------------ ------------ ------------ ----------- ------------
Total capital Items $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
N.O.I. After Capital Items $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
Debt Service (per Servicer) $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------
Cash Flow after debt service $0.00 $0.00 $0.00
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
(1)DSCR: (NOI/Debt Service)
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
DSCR: (after reserves\Cap exp.)
------------ ------------ ------------ ----------- ------------
------------ ------------ ------------ ----------- ------------
Source of Financial Data
------------ ------------ ------------ ----------- ------------
(i.e. operating statements, financial statements, tax return, other)
<FN>
Notes and Assumptions
- ------------------------------------- ---------------------------------------------------------------------------------------
This report should be completed by the Servicer for any "Normalization" of the Borrower's numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way information may vary in each borrower's statement.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
(1) Used in the Comparative Financial Status Report
</FN>
</TABLE>
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
- --------------------------------------------------------------------------------
1 2 3 4 5 6
Offering Doc ID Orig Note Amt Orig in Term
Transid Group ID Svcrn prospln oa ot
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
- ------- -------- ----- ------- ------------- ------------
7 8 9 10
Orig Amort term Orig Note rate Orig pmt rate Dt 1st Pmt
oaterm oir oir dfp
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
- --------------- -------------- ------------- ----------
11 12
int only
gracedy io
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- ------- --------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-2
Loan Set Up File
- --------------------------------------------------------------------------------
3 4 13 14 15
Offering Doc ID in rt typ int accr meth cd
svcrln prospin Balloon irtype intaccrcod
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
- ------ ------- ------- --------- ----------------
16 17 18 19
int arr pmt type cd prepmt lkout end dt Y/M end date
intarrears pmttypcode pplkoenddt yldmntendd
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
- ---------- ---------- ------------------- ------------
20
Prepay Prem end dt
pppremendd
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- ------------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-3
LOAN SET-UP FILE
- --------------------------------------------------------------------------------
3 4 21 22 23
Offering Doc ID Prepay terms Arm Ind cod Rate adj 1
svcrln prospin pptermdesc indexcd rateadjdt1
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
- ------ --------------- ------------ ----------- ----------
24 25 26 27 28
Pmt adj dt 1 Life cap Life floor Periodic Rt inc lmt
pmtadjdt1 ARM mgn Margin lifecap life floor pratinclmt
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- ------------ -------------- -------- ---------- -------------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-4
LOAN SET-UP FILE
- --------------------------------------------------------------------------------
3 4 29 30
Offering Doc ID Periodic Rt dec lmt Per Pmt adj max %
Svcrln prospin pratdeclmt ppadjmax
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
- ------ --------------- ------------------- -----------------
31 32 33 34 35
Per Pmt adj max $ Pmt freq Rt Reset freq mos pmt reset freq mos Round cd
ppadmaxamt pfreq rresetfreq presetfreq roundcode
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- ----------------- -------- ----------------- ------------------ --------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-5
LOAN SET-UP FILE
- --------------------------------------------------------------------------------
3 4 36 37 38
Offering Doc ID Round incre ndx lookbk Neg Am all
svcrin prospln roundincre ndxlkbk negam
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
- ------ --------------- ----------- ---------- ----------
39 40 41 12 43
Max Neg % max neg $ Rem term sec Rem Am Term sec Mat Date sec
maxneg maxneg amt rterm rematerm dmt
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------- --------- ------------ --------------- ------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-6
Loan Set-Up File
77
- --------------------------------------------------------------------------------
3 4 44 45 46
Offering Doc Sched UPB sec secure ir Svc/trus free
svcrin ID prospln begschbal secureir rt svctterate
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
- ------ ------------ ------------- --------- -------------
47 48 49 50 51 52
frt/srt 1 frt/srt 2 frt/srt 3 frt/srt 4 frt/srt 5 Net Rt sec
srate 1 srate 2 srate 3 srate 4 srate 5 secnetir
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------- --------- --------- --------- --------- ----------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-7
LOAN SET-UP FILE
- --------------------------------------------------------------------------------
3 4 53 54 55
Offering Doc ID Per P&I pmt sec # of prop Property name
svcrin prospln perpisec proptotal propname
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
- ------ --------------- --------------- --------- -------------
56 57 58 59
prop addr prop ci prop st Prop zip
propaddres propcity propstate propzip
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- ---------- -------- --------- -------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-8
Loan Set-Up File
- --------------------------------------------------------------------------------
3 4 60 61 62
Offering Doc ID Property Prop type cd Net Sq Ft sec
svcrln prospln County proptype netsqftsec
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
- ------ --------------- -------- ------------ -------------
63 64 68 66 67
# Units sec Year built NOI sec DSCR sec Appr Val sec
nounits yrbuilt mrfytdnoi mrfytddscr mrrecappr
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- ----------- ---------- ------- -------- ------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-9
LOAN SET-UP FILE
- --------------------------------------------------------------------------------
3 4 68 69 70
Offering Doc ID Appr Dt Sec Phys Occ sec Revenue sect
svcrln prospln mrapprdt mrfytdpo mrfytdrev
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
- ------ --------------- ----------- ------------ ------------
71 72 73 74 75
Oper Exp sec Sec Fin aod Grnd lease Cross-Coll In
mrfytdexp secfinaod Recoursc groundleas grp crcolngrp
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- ------------ ----------- -------- ----------- -------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-9-10
LOAN SET-UP FILE
- --------------------------------------------------------------------------------
3 4 76 77 78
Offering Doc ID Coll escr Coll resv Lien Pos sec
svcrln propsln collescrow collothres Lienpossec
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- ------ --------------- --------- --------- ------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-1
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
Group Offering Doc
transid groupid svcrin ID prosprin distribdt begschbal
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
- ------- ------- ------ ----------- --------- ---------
Mat Date sec Svc/trus fee rt
endschbal dpt index rate ir dmt svetterate
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------- --- ---------- -- ------------- -------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-2
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
frt/srt 1 frt/srt 2 frt/srt 3 frt/srt 4 frt/srt 5
svcrln srate1 srate2 srate3 srate4 srate5
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
- ------ ------ ------ ------ ------ ------
netir idex_rate note_rate dnic dnpc schint schprin
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- ----- --------- --------- ---- ---- ------ -------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-3
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
svcrin schpi negamdefin unprcoll othpradj liqppmtdt
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
- ------ ----- ---------- -------- -------- ---------
ppmtenyld ppintexc liqppcode aseramt aserdt asercum
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------- -------- --------- ------- ------ -------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-4
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
svcrln actenbal piadvos tiadvos oexpadvout Instat
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
- ------ -------- ------- ------- ---------- ------
bankruptcy forecldt reodt bankrupdt netliqproc liqexp
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- ---------- ------- ----- --------- ---------- ------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-5
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
svcrln reallosstr dtlstmod modcode modrate modpmtrat
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
- ------ ---------- -------- ------- ------- ---------
prefyrrev prefyrexp prefyrnoi preyfyrdsam prefyrdscr prefyrocc
- --------- --------- --------- ----------- ---------- ---------
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- --------- --------- --------- ----------- ---------- ---------
- --------- --------- --------- ----------- ---------- ---------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-6
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
svcrln prefyrodt sprefyrrev sprefyrexp sprefyrnoi sprefyrds
- ------ --------- ---------- ---------- ---------- ---------
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- ------ --------- ---------- ---------- ---------- ---------
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- ------ --------- ---------- ---------- ---------- ---------
Revenue sect Oper Exp sec
sprefyrdsc sprefyrpo sprefyraod mrfytdrev mrfytdexp
- ---------- --------- ---------- --------- ---------
- ---------- --------- ---------- --------- ---------
- ---------- --------- ---------- --------- ---------
- ---------- --------- ---------- --------- ---------
- ---------- --------- ---------- --------- ---------
- ---------- --------- ---------- --------- ---------
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- ---------- --------- ---------- --------- ---------
- ---------- --------- ---------- --------- ---------
- ---------- --------- ---------- --------- ---------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-7
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
NOI sec DSCR sec Phys Occ sec
svcrln mrfytdnoi mrfytdds mrfytddscr mrfytdpo mrfytdstdt
- ------ --------- -------- ---------- -------- ----------
- ------ --------- -------- ---------- -------- ----------
- ------ --------- -------- ---------- -------- ----------
- ------ --------- -------- ---------- -------- ----------
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- ------ --------- -------- ---------- -------- ----------
Appr Val sec
mrfytdendd mrapprdt mrrecappr wkostrcod mrsstrandt
- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
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- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
- ---------- -------- ---------- --------- ----------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT G-10-8
LOAN PERIODIC FILE
- --------------------------------------------------------------------------------
svcrln mrmsretdt dtasstres yrlastren ---------
- ------ --------- --------- --------- ---------
- ------ --------- --------- --------- ---------
- ------ --------- --------- --------- ---------
- ------ --------- --------- --------- ---------
- ------ --------- --------- --------- ---------
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primary master special
Accrual fees fees fees Days
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- ------- ---- ---- ---- ----
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-1
Property File
<S> <C> <C> <C> <C> <C> <C>
1 2 3 4 5 6 7
Tran ID Loan ID Prosup Other Prop ID Distrib Crossed Property Name
Loan ID ID Date Collateralized
Loan Grouping
====================================================================================================================================
G-11-1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-2
Property File
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 2 8 9 10 11 12 13 14 15 16
Tran ID Loan ID Zip County Prop Year Year Net SF
Address City State Code Type Code Built Renovated At Securitzn
====================================================================================================================================
G-11-2
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-3
Property File
<S> <C> <C> <C> <C> <C> <C> <C>
1 2 17 18 19 20 21 22
Tran ID Loan ID # of Prop Alloc. % of Loan Current Current Alloc. Ground
Units/Beds/Rooms Stat At Securitization Alloc. % Loan Amount Lease
At Securization
23 24 25 26
Other Escrow/ Most Recent Most Recent Date Asset To
Reserve Balances Appraisal Date Appraisal Value Be Resolved
====================================================================================================================================
G-11-3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-4
Property File
<S> <C> <C> <C> <C> <C> <C> <C>
1 2 27 28 29 30 31 32
Tran ID Loan ID Foreclosure REO Date Occ. % Occ. Date Date Lease % SF expire
Date Rollover Review 1-12 mo.
33 34 35 36
% SF expire % SF expire % SF expire % SF expire
13-24 mo. 25-36 mo. 37-48 mo. 49-60 mo.
====================================================================================================================================
G-11-4
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-5
Property File
<S> <C> <C> <C> <C> <C>
1 2 37 38 39 40
Tran ID Loan ID Largest Tenant SF Largest 2nd Largest SF 2nd Largest
Tenant Tenant Tenant
41 42 43 44
3rd Largest Tenant SF 3rd Largest Fiscal Year Securitization Finan.
Tenant End Month As of Date
====================================================================================================================================
G-11-5
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-6
Property File
<S> <C> <C> <C> <C> <C> <C>
1 2 45 46 47 48 49
Tran ID Loan ID Revenue At Oper. Exp. NOI At DSCR At Appraisal Value
Securitization At Securitization Securitization Securitization
Securitization
50 51 52 53 54
Appraisal Date Physical Occup Date of Last Preceding FY Preceding FY
Securitization At Securitization Inspection Fin. as of Revenue
Date
====================================================================================================================================
G-11-6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-7
Property File
<S> <C> <C> <C> <C> <C> <C>
1 2 55 56 57 58 59
Tran ID Loan ID Preceding FY Preceding FY Preceding FY Preceding FY Preceding FY
Expenses NOI Debt Service DSCR Occupancy
60 61 62 63
2nd Preceding 2nd Preceding 2nd Preceding 2nd Preceding
FY Fin as of Date FY Revenue FY Expenses FY NOI
====================================================================================================================================
G-11-7
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-11-8
Property File
<S> <C> <C> <C> <C> <C> <C>
1 2 64 65 66 67 68
Tran ID Loan ID 2nd Preceding 2nd Preceding 2nd Preceding Most Recent Most Recent
FY Debt Service FY DSCR FY Occup % FY Fin as of date FY Revenue
69 70 71 72 72
Most Recent Most Recent Most Recent Most Recent Most Recent
FY Expenses FY NOI FY Debt Service FY DSCR FY Occup %
G-11-8
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-12
CSSA
Bond Level File Layout
Bond Level Only - Reflects Distribution Statements
Version 1.0 (12/31/98)
- ------------------------------------------------------------------------------------------------------------------------------------
Format
Field Name # Type Example
- ------------------------------------------------------------------------------------------------------------------------------------
Character Set ASCII
Field Delineation Comma
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Transaction ID 1 AN XXX97001
Distribution Date 2 AN YYYYMMDD
Record Date 3 AN YYYYMMDD
Class Name/Class Id 4 AN A-1
Cusip 5 AN 999999AA1
Original Balance 6 Numeric 1000000.00
Notional Flag 7 AN Y
Beginning Balance 8 Numeric 100000.00
Scheduled Principal 9 Numeric 1000.00
Unscheduled Principal 10 Numeric 1000.00
Total Principal Distribution 11 Numeric 1000.00
Deferred Interest 12 Numeric 1000.00
Realized Loss (Gain) 13 Numeric 1000.00
Cumulative Realized Losses 14 Numeric 100000.00
Ending Balance 15 Numeric 1000.00
Current Index Rate 16 Numeric 0.055
Current Remittance Rate/Pass-Through Rate ` 17 Numeric 0.075
Accural Method 18 Numeric 1
Current Accrual Days 19 Numeric 30
Interest Accrued 20 Numeric 1000.00
Prepayment Penalty/Premium Allocation 21 Numeric 1000.00
Yield Maintenance Allocation 22 Numeric 1000.00
Other Interest Shortfall 23 Numeric 1000.00
Prepayment Interest Shortfall 24 Numeric 1000.00
Appraisal Reduction Allocation 25 Numeric 1000.00
Other Interest Shortfall 26 Numeric 1000.00
Total Interest Distribution 27 Numeric 1000.00
Cumulative Appraisal Reduction 28 Numeric 1000.00
Cumulative Prepayment Penalty/Premium Allocation 29 Numeric 1000.00
Cumulative Yield Maintenance Allocation 30 Numeric 1000.00
Beginning Unpaid Interest Balance 31 Numeric 1000.00
Ending Unpaid Interest Balance 32 Numeric 1000.00
DCR - Original Rating 33 AN AAA
DCR - Most Recent Rating 34 AN AAA
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD
Fitch - Original Rating 36 AN AAA
Fitch - Most Recent Rating 37 AN AAA
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD
Moody's - Original Rating 39 AN AAA
Moody's - Most Recent Rating 40 AN AAA
Moody's - Date Transmitted from Rating Agency 41 AN YYYYMMDD
Standard & Poors - Original Rating 42 AN AAA
Standard & Poors - Most Recent Rating 43 AN AAA
Standard & Poors - Date Transmitted From Rating 44 AN YYYYMMDD
Agency
- ------------------------------------------------------------------------------------------------------------------------------------
Field Name Description/Comments
- ------------------------------------------------------------------------------------------------------------------------------------
Character Set
Field Delineation
- ------------------------------------------------------------------------------------------------------------------------------------
Transaction ID Unique Issue Identification Mnemonic (Consistent With CSSA Periodic Loan File)
Distribution Date Date Payments Made To Certificateholders
Record Date Date Class Must Be Held As Of To Be Considered Holder of Record
Class Name/Class Id Unique Class Identification Mnemonic
Cusip Cusip # (Null If No Cusip Exists)
Original Balance The Class Balance At Inception Of The Issue
Notional Flag "Y" For Notional
Beginning Balance The Outstanding Principal Balance Of The Class At The Beginning Of The Current
Period
Scheduled Principal The Scheduled Principal Paid
Unscheduled Principal The Unscheduled Principal Paid
Total Principal Distribution Total Principal Payment Made
Deferred Interest Any Interest Added To The Class Balance Including Negative Amortization
Realized Loss (Gain) The Total Realized Loss of (Gain) Allocated
Cumulative Realized Losses Realized Losses Allocated Cumulative-To-Date
Ending Balance Outstanding Principal Balance Of The Class At The End Of The Current Period
Current Index Rate The Current Index Rate Applicable To The Calculation Of Current Period
Remittance Interest Rate
Current Remittance Rate/Pass-Through Rate Annualized Interest Rate Applicable To The Calculation Of Current Period
Remittance Interest
Accural Method I=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual, 5=Actual/366
Current Accrual Days The Number Of Accrual Days Applicable To the Calculation Of Current Period
Remittance Interest
Interest Accrued The Amount of Accrued Interest
Prepayment Penalty/Premium Allocation The Amount Of Prepayment Penalties Allocated
Yield Maintenance Allocation Total Amount Of Yield Maintenance Penalties Allocated
Other Interest Shortfall Other Specific Additions To Interest
Prepayment Interest Shortfall Total Interest Adjustments For PPIS
Appraisal Reduction Allocation Total Current Appraisal Reduction Allocated
Other Interest Shortfall Total Interest Adjustments Other Than PPIS
Total Interest Distribution The Total Interest Payment Made
Cumulative Appraisal Reduction Total Cumulative Appraisal Reduction Allocated
Cumulative Prepayment Penalty/Premium Allocation The Amount Of Prepayment Penalties Allocated To Date
Cumulative Yield Maintenance Allocation Total Amount Of Yield Maintenance Penalties Allocated To Date
Beginning Unpaid Interest Balance Outstanding Interest Shortfall At The Beginning Of the Current Period
Ending Unpaid Interest Balance Outstanding Interest Shortfall At The End Of the Current Period
DCR - Original Rating The Original Rating Of The Class By Duff & Phelps
DCR - Most Recent Rating The Most Recent Rating Of The Class By Duff & Phelps
DCR - Date Transmitted from Rating Agency The Date On Which The Most Recent Rating Was Provided To The Trustee By Duff &
Phels
Fitch - Original Rating The Original Rating Of The Class By Fitch
Fitch - Most Recent Rating The Most Recent Rating Of The Class By Fitch
Fitch - Date Transmitted from Rating Agency The Date On Which The Most Recent Rating Was Provided To The Trustee By Fitch
Moody's - Original Rating The Original Rating Of The Class By Moody's
Moody's - Most Recent Rating The Most Recent Rating Of The Class By Moody's
Moody's - Date Transmitted from Rating Agency The Date On Which The Most Recent Rating Was Provided To The Trustee By
Moody's
Standard & Poors - Original Rating The Original Rating Of The Class By Standard & Poors
Standard & Poors - Most Recent Rating The Most Recent Rating Of The Class By Standard & Poors
Standard & Poors - Date Transmitted From Rating The Date On Which The Most Recent Rating Was Provided To The Trustee By
Agency Standard & Poors
- ------------------------------------------------------------------------------------------------------------------------------------
G-12-1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT G-13
FORM OF COLLATERAL SUMMARY FILE
CSSA
Collateral Summary File Layout
Collateral Level Summary - Summarizes CSSA 100.1 Periodic File
Version 1.0 (12/31/98)
- ------------------------------------------------------------------------------------------------------------------------------------
Periodic Format
Field
Field Name Reference # # Type Example
- ------------------------------------------------------------------------------------------------------------------------------------
Character Set ASCII
Field Delineation Comma
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Transaction Id 1 AN XXX97001
Group Id 2 AN XXX97001
Distribution Date 3 AN YYYYMMDD
Original Loan Count 4 Numeric 100
Ending current period loan count 5 Numeric 99
Ending current period collateral 6 Numeric 1000000.00
balance 7
1 month Delinquent - number 7 Numeric 1
1 month Delinquent - scheduled balance 8 Numeric 1000.00
2 months Delinquent - number 9 Numeric 1
2 months Delinquent - scheduled balance 10 Numeric 1000.00
3 months Delinquent - number 11 Numeric 1
3 months Delinquent - scheduled balance 12 Numeric 1000.00
Foreclosure - number 13 Numeric 1
Foreclosure - scheduled balance 14 Numeric 1000.00
REO - number 15 Numeric 1
REO - scheduled balance 16 Numeric 1000.00
Specially serviced - number 17 Numeric 1
Specially serviced - scheduled balance 18 Numeric 1000.00
In Bankruptcy - number 19 Numeric 1
In Bankruptcy - scheduled balance 20 Numeric 1000.00
Prepaid loans - number 21 Numeric 1
Prepaid loans - principal 22 Numeric 1000.00
Total unscheduled principal 27+28 23 Numeric 1000.00
Total Penalty for the period 24 Numeric 1000.00
Current realized losses (gains) 47 25 Numeric 1000.00
Cumulative realized losses 26 Numeric 1000.00
Appraisal Reduction Amount 33 27 Numeric 1000.00
Cumulative Appraisal Reduction 35 28 Numeric 1000.00
Total P&I Advance Outstanding 37 29 Numeric 1000.00
Total T&I AdvanceOutstanding 38 30 Numeric 1000.00
Other Expense Advance Outstanding 39 31 Numeric 1000.00
Reserve Balances 32 Numeric 1000.00
LOC Balances 33 Numeric 1000.00
Amortization WAM 34 Numeric 333
Maturity WAM 35 Numeric 333
Calculated WAC 36 Numeric 0.105
- ------------------------------------------------------------------------------------------------------------------------------------
Field Name Description/Comments
- ------------------------------------------------------------------------------------------------------------------------------------
Character Set
Field Delineation
- ------------------------------------------------------------------------------------------------------------------------------------
Transaction Id Unique Issue Identification Mnemonic
Group Id Unique Identification Number Assigned To Each Loan Group Within An Issue
Distribution Date Date Payments Made To Certificateholders
Original Loan Count Number of loans at time of securitization
Ending current period loan count Number of loans at end of current period
Ending current period collateral Aggregate scheduled balance of loans at end of current period
balance
1 month Delinquent - number Number of loans one month delinquent
1 month Delinquent - scheduled balance Scheduled principal balance of loans one month delinquent
2 months Delinquent - number Number of loans two months delinquent
2 months Delinquent - scheduled balance Scheduled principal balance of loans two months delinquent
3 months Delinquent - number Number of loans three months delinquent
3 months Delinquent - scheduled balance Scheduled principal balance of loans three months delinquent
Foreclosure - number Number of loans in foreclosure - overrides loans in delinquency
Foreclosure - scheduled balance Scheduled principal balance of loans in foreclosure - overrides loans in
delinquency
REO - number Number of REOs - overrides loans in delinquency or foreclosure
REO - scheduled balance Book value of REOs - overrrides loans in delinquency or foreclosure
Specially serviced - number Number of specially serviced loans - includes loans in delinquency,
foreclosure, REO
Specially serviced - scheduled balance Scheduled principal of Specially Serviced loans
In Bankruptcy - number Number of loans in bankruptcy - included in delinquency aging category
In Bankruptcy - scheduled balance Scheduled principal balance of loans in bankruptcy - included in
delinquency aging category
Prepaid loans - number Number of prepayments in full for the current period
Prepaid loans - principal Principal balance of loans prepaid in full for the current period.
Total unscheduled principal Includes prepayments in full, partial pre-payments, curtailments in the
current period
Total Penalty for the period The aggregate prepayment or yield maintenance penalties on the loans for
the period.
Current realized losses (gains) Realized losses (gain) in the current period
Cumulative realized losses Cumulative realized losses
Appraisal Reduction Amount Total Current Appraisal Reduction Allocated
Cumulative Appraisal Reduction Total Cumulative Appraisal Reduction Allocated
Total P&I Advance Outstanding Outstanding P&I Advances At The End Of The Current Period
Total T&I AdvanceOutstanding Outstanding Taxes & Insurance Advances At The End Of The Current Period
Other Expense Advance Outstanding Other Outstanding Advances At The End Of The Current Period
Reserve Balances Balance of cash or equivalent reserve accounts pledged as credit
enhancement
LOC Balances Balance of letter of credit reserve accounts pledged as credit enhancement
Amortization WAM Weighted average maturity based on amortization term
Maturity WAM Weighted average maturity based on term to maturity
Calculated WAC Weighted average coupon used to calculate gross interest
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
G-13-1
<PAGE>
EXHIBIT H
FORM OF AFFIDAVIT OF LOST NOTE
STATE OF )
) ss.:
COUNTY OF )
___________________________, _______________________, being duly sworn,
deposes and says:
1. that he/she is an authorized signatory of _________________________ (the
"Noteholder");
2. that the Noteholder is the owner and holder of a mortgage loan in the
original principal amount of $_______ secured by a mortgage (the "Mortgage") on
the premises known as ______________ _______________, located in
____________________;
3. that the Noteholder, after having conducted a diligent investigation of
its records and files, has been unable to locate the following original note and
believes that said original note has been lost, misfiled, misplaced or destroyed
due to a clerical error:
a note in the original sum of $______ made by __________, to
__________________________, under date of _______(the "Note");
4. that the Note is now owned and held by the Noteholder;
5. that the Note has not been paid-off, satisfied, assigned, transferred,
encumbered, endorsed, pledged, hypothecated, or otherwise disposed of and that
the original Note has been either lost, misfiled, misplaced or destroyed;
6. that no other person, firm, corporation or other entity has any right,
title, interest or claim in the Note except the Noteholder; and
7. upon assignment of the Note by the Noteholder to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor" or the "Purchaser") and
subsequent assignment by the Depositor to the Trustee for the benefit of the
holders of the Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 (the "Trustee") (which
assignment may, at the discretion of the Depositor, be made directly by the
Noteholder to the Trustee) the Noteholder covenants and agrees (a) to promptly
deliver to the Trustee the original Note if it is subsequently found, and (b) to
indemnify and hold harmless the Trustee and its successors and assigns from and
against any and all costs, expenses and monetary losses arising as a result of
the Noteholder's or the Depositor's failure to deliver said original Note to the
Trustee.
H-1
<PAGE>
NAME OF NOTEHOLDER
By:__________________________
Authorized Signatory
Sworn to before me this
___day of ____________, 199_
H-2
<PAGE>
EXHIBIT I
INVESTOR CERTIFICATION
Date:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS)
Credit Suisse First Boston Mortgage Securities Corp., Series 1999-C1
In accordance with Section 4.02 of the Pooling and Servicing Agreement,
dated as of October 11, 1999 (the "Agreement"), among Credit Suisse First Boston
Mortgage Securities Corp. as Depositor, Wells Fargo Bank, National Association
as Servicer, Lennar Partners, Inc. as Special Servicer, The Chase Manhattan Bank
as Trustee, and Norwest Bank Minnesota, National Association as Certificate
Administrator and Custodian (the "Administrator"), with respect to the Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
____ Certificates.
2. The undersigned is requesting, pursuant to Section 4.02 of the Agreement,
is requesting access to certain information (the "Information") on the
Administrator's website and/or is requesting the information identified on
the schedule attached hereto (also, the "Information") pursuant to Section
4.02 of the Agreement.
3. In consideration of the Administrator's disclosure to the undersigned of
the Information, or providing access in connection therewith, the
undersigned will keep the Information confidential (except from such
outside persons as are assisting it in making an evaluation in connection
with purchasing the related Certificates, from its accountants and
attorneys, and otherwise from such governmental or banking authorities or
agencies to which the undersigned is subject), and such Information will
not, without the prior written consent of the Administrator, be otherwise
disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives")
in any manner whatsoever, in whole or in part; provided that the
undersigned may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase of any
Certificate or interest therein, but only if such person or entity confirms
in writing such ownership interest or prospective ownership interest and
agrees to keep it confidential.
I-1
<PAGE>
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Administrator and the Trust Fund for any loss, liability or expense
incurred thereby with respect to any such breach by the undersigned or any
of its Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
I-2
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
_________________________________________
Beneficial Owner or Prospective Purchaser
Name: __________________________________
Title: _________________________________
Company:________________________________
Phone:__________________________________
I-2
<PAGE>
EXHIBIT J
Cut-off Date
Principal Loan
Loan # Loans Property Name Balance DSCR
1 CSFB Exchange Apartments 58,000,000.00 1.48
2 CSFB Selig - Third and Broad 25,471,293.65 1.24
3 CSFB Selig - 3131 Elliot Building 14,733,395.34 1.24
4 CSFB Selig - Airborne Building 10,887,729.43 1.24
5 CSFB Tallahassee Mall 47,937,104.45 1.15
6 CSFB Accor - Mountain Summary 26,263,337.04 NAP
7 CSFB Accor - California North 14,018,721.15 NAP
Summary
8 CSFB Hato Rey Tower 38,774,229.10 1.25
9 CSFB L'Enfant Plaza 37,204,670.69 1.39
10 CSFB Holiday Inn - Broadway 35,962,109.12 1.92
11 CSFB Scholastic Building 33,965,599.81 1.49
12 CSFB Blue Hills Office Park 33,149,000.00 1.20
13 CSFB 150 William Street 29,440,579.47 1.20
14 MSMC Hotel Union Square/Diva 29,332,250.85 1.52
Summary
15 CSFB White Lodging Summary 27,938,199.65 1.99
16 CSFB SunPark Airpark - St.Louis 26,976,629.68 1.27
17 CSFB Sunset Ridge & Sunset Peak 25,482,959.38 1.27
Apartments Summary
18 CSFB Century Centre I 25,470,362.51 1.30
19 CSFB 401 North Broad Street 19,888,550.79 1.56
20 CSFB Kings Village Corp. 19,693,942.86 1.75
21 MSMC Capetown Plaza Shopping Center 11,954,129.62 1.21
22 MSMC Lewis County Mall 5,016,269.93 1.21
23 MSMC Tampa Shopping Plaza 2,219,207.29 1.21
24 CSFB Midway Shopping Center 17,482,834.40 1.20
25 MSMC Shops at the Bluffs 17,250,000.00 1.26
26 MSMC Seminole Mall 17,100,545.99 1.29
27 CSFB Fairfield Suites & Courtyard 17,000,000.00 1.75
by Marriott Summary
29 CSFB Cathedral Building 16,983,230.11 1.26
30 CSFB Investor's Business Daily 15,783,654.52 1.26
Building
31 MSMC Suburban Lodge Summary 14,652,229.11 1.34
32 CSFB East Norriton Crossing 12,792,149.51 1.34
33 CSFB K.V. Properties Inc Summary 12,708,740.21 1.32
34 CSFB Periwinkle Place Shopping 12,632,053.82 1.25
Center
35 CSFB West Valley Medical Center 12,454,221.26 1.33
36 CSFB Wilshire Westwood Apartments 12,214,232.17 1.62
37 CSFB Cornelius Pass Business Park 10,942,637.85 1.21
38 CSFB Town and Country Office Park 10,463,154.41 1.30
J-1
<PAGE>
39 CSFB Muscarelle Portfolio Summary 10,193,400.27 1.23
40 CSFB IBM Corporate Center 9,963,585.96 1.19
41 CSFB Frassetto Properties Summary 9,851,092.68 1.28
42 CSFB Easton Commons Plaza Shopping 9,768,689.98 1.21
Center
43 CSFB The Vinegar Factory (Eli's 9,763,065.58 1.43
Market)
44 CSFB Holiday Inn & Suites - Bristol 9,491,225.50 1.53
45 CSFB Vilter Manufacturing Center 9,343,927.00 1.23
46 MSMC Lynnwood Corporate Center 8,491,630.26 1.32
47 MSMC Design Center Industrial Park 7,955,776.96 1.39
48 CSFB LaSalle Atrium 7,740,517.99 1.42
49 CSFB Meridian Place Apartments 7,725,428.77 1.34
50 CSFB Kirkwood Landing Apartments 7,591,806.26 1.17
51 CSFB Gateway East & West 7,245,489.10 1.24
52 CSFB Kanawha Mall 6,993,787.38 1.32
53 MSMC Saf Keep Self Storage 6,746,508.94 1.33
54 CSFB Binnings Building 6,542,073.51 1.13
55 CSFB Commercial Park West 5,996,030.98 1.94
56 CSFB Sea Crest at Amagansett Corp. 5,738,989.15 1.76
57 CSFB Park Glen West Business Ctr 5,626,490.85 1.37
58 MSMC Barrington Heights Apartments 5,591,484.53 1.49
59 MSMC Stop and Store Self Storage 5,463,681.96 1.84
60 CSFB Crestview Office 5,444,059.97 1.30
61 CSFB Grand Cove I Apartments 5,310,150.94 2.71
62 CSFB Eagle Food Center 5,194,146.16 1.25
63 CSFB Pinewood Square Shopping 4,996,939.69 1.28
Center
64 CSFB Courtyard by Marriott 4,975,737.12 1.97
65 CSFB Forest Lane Apartments 4,850,000.00 1.25
66 CSFB Greenfield Station Apartments 4,623,112.73 1.56
67 CSFB 92 State Street 4,570,735.60 1.91
68 CSFB Hill Castle Apartments 4,432,669.70 1.33
69 CSFB Redwood City Office Building 4,319,369.67 1.31
70 MSMC 2855 Telegraph Avenue Office 4,164,400.49 1.72
Building
71 CSFB Mladen Portfolio Summary 4,096,194.25 1.58
72 CSFB Twin Peaks Square Shopping 3,997,321.53 1.46
Center
73 CSFB Countrybrook Estates 3,997,255.57 1.70
74 CSFB 1674 Broadway 3,989,543.30 1.52
75 MSMC Wells Cargo Self Storage 3,987,591.43 1.26
76 CSFB Oasis Apartments 3,940,150.93 1.25
77 CSFB Crown Meadows Shopping Center 3,821,086.50 1.28
78 CSFB Embassy Apartments 3,797,635.67 1.34
79 CSFB Sandy Ridge Apartments 3,791,987.28 1.47
80 CSFB Southern Medical Building 3,791,615.37 1.49
81 CSFB The Westhampton Bath & Tennis 3,717,533.56 1.33
Club
J-2
<PAGE>
82 CSFB Candlewick Townhomes 3,341,143.02 1.34
83 CSFB Ocean Beach Resort, Ltd. 3,338,837.58 2.66
84 CSFB Pacella Park Summary 3,316,498.17 1.23
85 CSFB Quality Inn-Sea Oatel 3,247,389.66 1.65
86 CSFB St. George Medical Center 3,094,878.98 1.44
87 MSMC Ocean Park Centinela Office 3,039,269.06 1.33
Building
88 CSFB Surf Club at Montauk Corp. 3,001,400.62 2.33
89 CSFB Ambiance Townhomes 2,997,920.75 1.35
90 MSMC Britannia Business Center 2,984,836.75 1.74
91 MSMC Northwest Corporate Park 2,947,956.98 1.46
92 CSFB Super 8 Motel 2,937,865.90 1.52
93 CSFB Scandia-Hemman Apartments 2,874,797.70 1.31
94 CSFB Orchard Square Office Park 2,598,146.37 1.61
95 MSMC Murray's Discount Auto Store 2,584,131.50 1.40
Summary
96 CSFB Holiday Plaza 2,547,861.99 1.22
97 CSFB Lakeside Shopping Center 2,497,613.30 1.18
98 CSFB Palm Desert Business Center 2,490,956.47 1.64
99 CSFB Port Royal Motel Cooperative 2,487,642.32 1.54
100 MSMC The Meadows Square Mall 2,393,088.16 1.27
101 CSFB Civic Center Office Building 2,389,745.79 1.29
102 CSFB Blockbuster Video / Scotty's 2,298,606.66 1.32
Home Summary
103 MSMC 17290 Preston Road Office 2,297,594.01 1.29
Building
104 MSMC Mid-Towne Mobile Terrace 2,291,513.56 1.34
105 CSFB Engler Block 2,272,970.78 1.50
106 CSFB Bellevue Tower Apartments 2,247,460.31 1.79
107 CSFB East Mountain Medical Center 2,097,194.56 1.27
108 CSFB Sierra Elm Shopping Center 1,768,096.91 1.39
109 CSFB Valerio Capri Apartments 1,628,934.84 1.37
110 CSFB Gotham Bar & Grill 1,597,517.91 1.33
111 CSFB Mission Hills Village Plaza 1,587,009.93 1.27
112 CSFB Clarksdale Commons Shopping 1,499,029.73 1.35
Center
113 CSFB King Plaza 1,496,582.06 2.16
114 CSFB Goodwill Building 1,399,162.29 1.35
115 CSFB Country Village Apartments 1,358,425.33 1.62
116 CSFB 12 West 32nd Street Tenants 1,290,257.10 2.54
Corp.
117 CSFB 4711 Callan Blvd Apartments 1,263,632.14 1.21
118 CSFB Forest Crossing Medical 1,191,175.44 1.28
Building
119 CSFB Devonwood Apartments 1,123,954.01 1.41
120 CSFB 11825 Owners Corp. 1,096,296.83 4.67
121 MSMC Indian Harbor Self Storage 1,093,329.82 1.66
122 CSFB Ansley North Cooperative, Inc. 1,065,694.47 2.21
123 CSFB West 8th Street Apartments 1,059,390.14 1.19
J-3
<PAGE>
124 MSMC All Seasons Mini Storage 1,046,423.92 1.54
125 CSFB 330 East Jericho Turnpike 1,043,399.35 1.25
126 CSFB Sequoia Apartments 977,362.61 1.29
127 CSFB Broadmill Apts 973,849.32 1.42
128 CSFB West Wood Village Apts 969,926.74 1.78
129 CSFB Chick Hampton Office Building 949,447.75 1.50
130 CSFB Cambrick On The Park 844,457.99 1.70
Condominiums
131 CSFB 287 South 6th Avenue 840,605.40 1.29
132 CSFB Metro Centre 837,172.07 1.29
133 CSFB 350 Pleasant Street 792,843.58 1.48
134 CSFB Eckerd's Pittsburgh 696,177.79 1.21
135 CSFB Azadgan Center 688,167.16 1.28
136 CSFB Jeanne Estates Apartments 632,896.40 1.52
137 CSFB Starburst Apartments 594,930.78 1.52
138 CSFB Josephine Apartments 518,938.66 1.41
139 CSFB Valley View Apartments 513,151.81 1.72
140 CSFB 1011-1019 Ocean Front Walk 494,961.08 3.95
141 CSFB 2555 "D" Street 464,451.96 1.21
142 CSFB Tempe Manor Apts 444,932.75 1.37
143 CSFB Sophia Warehouse 422,476.98 1.29
144 CSFB Betty Jane Apartments 401,251.99 1.71
145 CSFB Desert Winds Apartments 401,251.98 1.56
146 CSFB Poolside Apartments 393,821.38 1.71
147 CSFB Clark Apartments 372,479.10 1.20
148 CSFB 1327 2nd Street 347,718.00 1.24
149 CSFB Crown Apartments 343,557.76 1.37
150 CSFB Park Place-Fradin 339,543.32 1.32
151 CSFB Gladstone & Benton Apartments 276,229.48 1.66
152 CSFB Country Manor 241,494.23 1.36
153 CSFB Homestead Inn Apartments 234,626.63 1.29
1,170,108,234.11
J-4
================================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
(Seller)
-------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 11, 1999
-------------------------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date.................
Section 2. Closing Date Actions.........................................
Section 3. Conveyance of Mortgage Loans.................................
Section 4. Depositor's Conditions to Closing............................
Section 5. Seller's Conditions to Closing...............................
Section 6. Representations and Warranties of Seller.....................
Section 7. Obligations of Seller........................................
Section 8. Representations and Warranties of Depositor..................
Section 9. Survival of Certain Representations, Warranties and
Covenants....................................................
Section 10. Accountant's Letters.........................................
Section 11. Expenses; Recording Costs....................................
Section 12. Notices......................................................
Section 13. Examination of Mortgage Files................................
Section 14. Successors...................................................
Section 15. Governing Law................................................
Section 16. Severability.................................................
Section 17. Further Assurances...........................................
Section 18. Counterparts.................................................
Section 19. Treatment as Security Agreement..............................
Section 20. Recordation of Agreement.....................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations
and Warranties
Exhibit A Representations and Warranties of Seller Regarding
the Mortgage Loans
Exhibit B Form of Lost Mortgage Note Affidavit
Exhibit C Form of Assignment of Mortgage(s) and Assignment of
Assignment of Lessor's Interests in Leases, Rents
and Profits
Exhibit D Form of Seller's In-House Counsel Opinion
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of October 11, 1999, is made by and between CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, a Delaware limited liability company ("Seller") and CREDIT SUISSE
FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor").
RECITALS
I Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II. Depositor intends to deposit the Mortgage Loans
and other assets into the Trust Fund created pursuant to the Pooling and
Servicing Agreement and to cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to The Chase
Manhattan Bank as custodian (in such capacity, the "Custodian") or as trustee
(in such capacity, the "Trustee"), against receipt by Seller of a trust receipt,
pursuant to an arrangement between Seller and the Custodian.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Offered Certificates by Depositor to the
Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing shall take place at the offices of Cadwalader,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, or such other
location as agreed upon between the parties hereto. On the Closing Date, the
following actions shall take place in sequential order on the terms set forth
herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price (as defined herein) shall be paid by Depositor to Seller or at its
direction by wire transfer in immediately available funds to an account
designated by Seller on or prior to the Closing Date. The "Mortgage Loan
Purchase Price" paid by Depositor shall be equal to 98.5142% of the
aggregate outstanding principal balance of the Mortgage Loans, after
giving effect to any scheduled monthly payments due on or prior to the
Cut-off Date, plus accrued interest at the weighted average Mortgage Rate
from the Cut-off Date to but not including the Closing Date.
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Offered Certificates pursuant to the
Underwriting Agreement, and Depositor shall sell to the Initial Purchaser,
and the Initial Purchaser shall purchase from Depositor, the Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Offered Certificates for sale
to the public pursuant to the Prospectus and the Prospectus Supplement and
the Initial Purchaser will privately place certain classes of the
Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as provided
herein, to Depositor, free and clear of any liens, claims or other encumbrances,
all of Seller's right, title and interest in, to and under each of the Mortgage
Loans identified on the Mortgage Loan Schedule and all property of Seller
described in Section 19 of this Agreement. On or prior to the Closing Date, each
Mortgage File shall be delivered by Seller to the Custodian. Each Mortgage File
shall contain the following documents:
(a) the original Mortgage Note, or with respect to those Mortgage
Loans listed in Schedule IV hereto, a "lost note" affidavit substantially
in the form of Exhibit B hereto and a true and complete copy of the
Mortgage Note, bearing, or accompanied by, all prior and intervening
endorsements or assignments thereof showing a complete chain of
endorsement or assignment from the Originator of the related Mortgage Loan
to Seller, and further endorsed (at the direction of Depositor given
pursuant to this Agreement) by Seller, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of The Chase Manhattan Bank, as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, without
recourse, representation or warranty, express or implied;"
(b) a duplicate original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies from
the applicable recording office) of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the related
Mortgage Loan to Seller, in each case with evidence of recording indicated
thereon;
(c) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) Assignment of Mortgage
substantially in the form of Exhibit C hereto, in recordable form, from
Seller to The Chase Manhattan Bank, as trustee for the registered Holders
of Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1999-C1;
(d) an original Assignment of Leases (if such item is a document
separate from the Mortgage), in recordable form;
(e) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) of any related assignment of
Assignment of Leases (if such item is a document separate from the
Mortgage) substantially in the form of Exhibit C hereto and the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the Originator of the related Mortgage Loan to Seller,
in each case with evidence of recording thereon;
(f) an original or a true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
executed by Seller in favor of The Chase Manhattan Bank, as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 1999-C1;
(h) originals or true and complete copies of all assumption,
modification, written assurance and substitution agreements, with evidence
of recording thereon, where appropriate, in those instances where the
terms or provisions of the related Mortgage or Mortgage Note or any
related security document have been modified or the related Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the related Mortgage Loan,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, or if the policy has not yet
been issued, a written binding commitment or interim binder, dated as of
the date the related Mortgage Loan was funded;
(j) the original or a true and complete copy of any guaranty of the
obligations of the Mortgagor under the related Mortgage Loan and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller, in each case with evidence of recording thereon;
(k) all UCC Financing Statements and continuation statements or
copies thereof filed with respect to the Mortgage Loans;
(l) the original or a true and complete copy of the power of
attorney (with evidence of recording thereon) granted by the Mortgagor if
the Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(m) any intercreditor agreement relating to any debt of a Borrower
secured by the related Mortgaged Property other than the related Mortgage
Loan;
(n) if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a
copy of the UCC-1 financing statements, if any, submitted for filing with
respect to the Seller's security interest in the Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and UCC-2 or UCC-3
financing statements assigning such security interest to the Trustee on
behalf of the Certificateholders);
(o) any Loan Agreement;
(p) any Credit Leases and all other documents or amendments related
thereto;
(q) any environmental insurance policies;
(r) the original Residual Value Policy;
(s) letters of credit, if any, relating to the Additional Collateral
Loans;
(t) the related intercreditor agreement, if any;
(u) the applicable participation documents, including (i) the
Participation and Intercreditor Agreement for Loan No. 9 on the Mortgage
Loan Schedule (the "L'Enfant Loan"), dated October 11, 1999, by and
between the Depositor and the Seller, and (ii) the Co-Lender Agreement
relating to the L'Enfant Loan, dated November 11, 1998, by and between The
Chase Manhattan Bank, as trustee for Credit Suisse First Boston Mortgage
Securities Corp., Commercial Pass Through Certificates, Series 1998 C-2 as
successor to Credit Suisse First Boston Mortgage Securities Corp. and the
Seller; and
(v) any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
With respect to the L'Enfant Loan, document delivery requirements
(other than those specified in clause (u) above) will be met by the delivery of
copies of any mortgage loan documents required to be delivered under this
agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan (other than the L'Enfant Loan), Seller cannot deliver an
original recorded counterpart of any of the documents required to be delivered
pursuant to clauses (b), (d), (f), (h), (k) (with respect to UCC financing
statements filed other than in accordance with the transfer contemplated by this
Agreement) and (l) above with evidence of recording or filing thereon
concurrently with the execution and delivery hereof, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation, Seller shall deliver, or cause to be delivered, to
the Custodian a duplicate original or true copy of such document certified by
the applicable public recording or filing office to be a true and complete
duplicate original or copy of the original thereof submitted for recording or
filing.
Notwithstanding the foregoing, in the event that Seller cannot
deliver to the Custodian any UCC-2 or UCC-3 assignment with the filing
information of the UCC-1 financing statement being assigned, solely because of a
delay caused by the public filing office where such UCC-1 financing statement
has been delivered for filing, Seller shall deliver or cause to be delivered to
the Custodian a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. Seller, promptly upon receipt of the applicable filing
information of the UCC-1 financing statement being so assigned, shall deliver to
the Custodian the original UCC-2 or UCC-3 assignment with all appropriate filing
information set forth thereon.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its affiliates solely for internal uses, shall immediately vest in
Depositor and shall be forwarded by Seller to the Custodian by overnight mail
for next-day delivery and retained and maintained, in trust, by the Custodian at
the will of Depositor, in such custodial capacity only. All Monthly Payments,
Principal Prepayments and other amounts received by Seller and not otherwise
belonging to Seller pursuant to this Agreement shall be sent by Seller within
three (3) Business Days of Seller's receipt thereof to the Servicer via wire
transfer for deposit by the Servicer into the Collection Account.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor under this Agreement shall be subject to the satisfaction, on the
Closing Date, of the following conditions:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
all of the representations and warranties of Seller under this Agreement
shall be true and correct in all material respects as of the Closing Date;
and no event shall have occurred with respect to Seller or any of the
Mortgage Loans and related Mortgage Files which, with notice or the
passage of time, would constitute a material default under this Agreement;
and Depositor shall have received certificates to the foregoing effect
signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Custodian or
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other
than Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, which shall have been delivered to and
held by the Custodian on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) an officer's certificate of Seller, dated as of the
Closing Date, with certified copies of the charter, by-laws, and a
certificate of good standing dated as of a recent date of Seller;
(iv) an opinion of Seller's in-house counsel, dated the
Closing Date, in substantially the same form as Exhibit D attached hereto.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made herein, and on certificates or other documents furnished by officers of
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the Limited Liability Company Act of the
State of Delaware and the laws of the State of New York and the United States
and shall not be required to express any opinion with respect to the
registration or qualification of the Certificates under any applicable state or
federal securities laws.
Such counsel shall state that, although such counsel has not
specifically considered the possible applicability to Seller of any other laws,
regulations, judgments, orders or decrees, no facts have been disclosed to such
counsel that cause such counsel to conclude that any other consent, approval or
action is required;
(v) an opinion of Cadwalader, Wickersham & Taft, special
counsel to Seller, dated the Closing Date, substantially to the effect of
the following (with such changes and modifications as Depositor may
approve):
Assuming the due authorization, execution and delivery of this
Agreement by Seller, this Agreement constitutes a valid and
binding agreement of Seller, enforceable against Seller in
accordance with its terms, except to the extent that
enforcement hereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect and (y) general principles of
equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of,
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the laws of the State of New York and the
United States to the extent specifically referred to.
(vi) such other certificates of Seller's officers or others
and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
and all of the representations and warranties of Seller under this
Agreement shall be true and correct in all material respects as of the
Closing Date; and no event shall have occurred with respect to Depositor
which, with notice or the passage of time, would constitute a material
default under this Agreement, and Seller shall have received certificates
to that effect signed by authorized officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
Seller and Depositor, duly executed by all signatories other than Seller,
as required pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others and such
other documents required to evidence fulfillment of the conditions
set forth in this Agreement as Seller or its counsel may reasonably
request.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller has conducted and
is conducting its business so as to comply in all material respects with
all applicable statutes and regulations of regulatory bodies or agencies
having jurisdiction over it, except where the failure so to comply would
not have a materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, investigation, action, suit or
proceeding before or by any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Seller, threatened, which
is reasonably likely to materially and adversely affect the performance by
Seller of this Agreement or the consummation of transactions contemplated
by this Agreement.
(ii) Neither the execution and delivery by Seller of this
Agreement, nor the compliance by Seller with the provisions hereof, nor
the consummation by Seller of transactions contemplated by this Agreement
will (I) conflict with or result in a breach of, or constitute a default
or result in the acceleration of any obligations under, the certificate of
formation or operating agreement of Seller or, after giving effect to the
consents or the taking of the actions contemplated by clause (II) of this
subparagraph (ii), any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on Seller or its properties
or any of the provisions of any material indenture or mortgage or any
other material contract or instrument to which Seller is a party or by
which it or any of its properties is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument (other than pursuant to this Agreement) or (II) require the
consent of or notice to, or any filing with, any person, entity or
governmental body, which has not been obtained or made by Seller, except
where, in any of the instances contemplated by clause (I) above or this
clause (II), the failure to do so will not have a material adverse effect
on any transactions relating to the sale of the Mortgage Loans by Seller.
(iii) The execution and delivery by Seller of this Agreement,
and the consummation of transactions contemplated by this Agreement on the
terms set forth herein, have been duly authorized by all necessary limited
liability company action on the part of Seller and are within the limited
liability company power of Seller, and this Agreement has been duly
executed and delivered by Seller and constitutes a legal, valid and
binding instrument, enforceable against Seller in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights generally, and to general
principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in
equity or at law).
(iv) No consent, approval, authorization or order of,
registration or filing with, or notice to any federal, state or local
governmental authority or court that has not been obtained, made or given
is required in connection with the execution, delivery and performance of
this Agreement by Seller.
(v) No litigation is pending or, threatened against the Seller
which would materially and adversely affect the validity of the Mortgage
Loans, or the ability of the Seller to carry out any transactions relating
to the sale of the Mortgage Loans by Seller.
(vi) Except as set forth on Schedule V hereto, the
representations and warranties contained in Exhibit A hereto are true and
correct in all material respects as of the Closing Date.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, subject to Section 14 of this Agreement,
notwithstanding any restrictive or qualified endorsement on the mortgage notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties contained in or required
to be made by Seller pursuant to Section 6 of this Agreement shall not be
impaired by any review or examination of the Mortgage Files or other documents
evidencing or relating to the Mortgage Loans or any failure on the part of
Depositor to review or examine such documents and shall inure to the benefit of
any initial transferee of the Mortgage Loans from Depositor including, without
limitation, the Trustee for the benefit of the Holders of the Certificates.
Upon discovery of any Defect (as defined herein) in a Mortgage File
related to a Mortgage Loan, Depositor or its assignee shall promptly notify
Seller in writing of such Defect and request that Seller cure such Defect within
90 days from the date Seller was notified of such Defect; provided, however,
that if such Defect would cause such Mortgage Loan to be other than a "qualified
mortgage" under Section 860G(a)(3) of the Code, then such cure shall be within
90 days of discovery of such Defect. A document in the Mortgage File shall be
deemed to have a "Defect" if (a) any document required to be included in the
Mortgage File is not in the possession of the Custodian, on behalf of the
Trustee, within the time required to be delivered pursuant to this Agreement or
(b) such document has not been properly executed or is otherwise defective on
its face; provided, however, that a document shall not be deemed to have a
Defect if such Defect is caused by the failure by Depositor to execute such
document after having been directed by Seller to execute such document. If
Seller does not correct or cure such Defect within such period, Seller shall
purchase such Mortgage Loan from the Trust Fund at the Purchase Price pursuant
to Section 2.03 of the Pooling and Servicing Agreement.
Within 90 days of the receipt of written notice by Seller of a
breach (a "Breach") of any of the representations, warranties or covenants of
Seller with respect to the Mortgage Loans set forth in Exhibit A to this
Agreement (or, if any such Breach would cause the Mortgage Loan to be other than
a "qualified mortgage" under Section 860G(a)(3) of the Code, within 90 days of
discovery of the Breach) which, in either case, materially and adversely affects
either (i) the interests of Depositor or the Certificateholders in the related
Mortgage Loan or (ii) the value of the related Mortgage Loan, Seller shall cure
such Breach and, if Seller does not correct or cure such Breach within such
period, or if such Breach cannot be so cured, then Seller shall purchase the
affected Mortgage Loan at the Purchase Price pursuant to Section 2.03 of the
Pooling and Servicing Agreement. If Seller is required to repurchase any
Mortgage Loan that is part of a Mortgage Group (as defined herein), Seller shall
also be required to repurchase the remaining Mortgage Loans in such Mortgage
Group. For purposes of this paragraph, a "Mortgage Group" is any group of
Mortgage Loans identified as a Mortgage Group on Schedule III to this Agreement.
The Purchase Price for any repurchased Mortgage Loan shall be
payable to Depositor or, subsequent to the assignment of the Mortgage Loans to
the Trustee, the Trustee as its assignee, by wire transfer of immediately
available funds to the account designated by Depositor or its assignee, and
Depositor or its assignee, upon receipt of such funds, shall promptly release
the related Mortgage File or cause it to be released, to Seller and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in Seller title to any Mortgage
Loan released pursuant hereto. The Depositor or the Servicer, as applicable,
shall deliver to Seller an officer's certificate setting forth the calculation
of the Purchase Price.
With respect to each Servicer Remittance Date, if any, on which the
Servicer makes a Yield Protection Payment Advance pursuant to Section 4.03(g) of
the Pooling and Servicing Agreement, the Seller shall reimburse the Servicer for
such Yield Protection Payment Advance, in immediately available funds wired to
the account specified by the Servicer in a written notice to the Seller,
specifying the amount of such Yield Protection Payment Advance and the Loan with
respect to which it was made.
Section 8. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its
business as it is conducted, and is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
qualification (except where the failure to qualify would not have a
materially adverse effect on the consummation of any transactions
contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the
corporate power of Depositor and have been duly authorized by Depositor
and neither the execution and delivery by Depositor of this Agreement nor
the compliance by Depositor with the provisions hereof, nor the
consummation by Depositor of the transactions contemplated by this
Agreement, will (i) conflict with or result in a breach of, or constitute
a default under, the certificate of incorporation or by-laws of Depositor
or, after giving effect to the consents or taking of the actions
contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on Depositor or its properties, or any of the provisions of any
material indenture or mortgage or any other material contract or other
instrument to which Depositor is a party or by which it is bound or result
in the creation or imposition of any lien, charge or encumbrance upon any
of its properties pursuant to the terms of any such indenture, mortgage,
contract or other instrument or (ii) require the consent of or notice to,
or any filing with any person, entity or governmental body, which has not
been obtained or made by Depositor, except where, in any of the instances
contemplated by clause (i) above or this clause (ii), the failure to do so
will not have a material and adverse effect on the consummation of any
transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally and to general principles of equity and the discretion of the
court (regardless of whether enforcement of such remedies is considered in
a proceeding in equity or at law) and, as to rights of indemnification
hereunder, subject to limitations of public policy under applicable
securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Depositor, threatened
against Depositor the outcome of which could be reasonably expected to
materially and adversely affect the consummation of any transactions
contemplated by this Agreement.
Section 9. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 11 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 10. Accountant's Letters. On or before the Closing Date,
PriceWaterhouseCoopers LLP will have reviewed the characteristics of the
Mortgage Loans described in (a) the Mortgage Loan Schedule attached hereto and
set forth as an exhibit to the Pooling and Servicing Agreement and (b) the
computer disk prepared by Seller and provided to Depositor and will compare
those characteristics to, and ensure their agreement with (i) the description of
the Mortgage Loans contained in the Prospectus Supplement and the Offering
Circular, respectively; (ii) original documentation and files of Seller
maintained with respect to each Mortgage Loan; and (iii) if applicable,
information with respect to such Mortgage Loans contained in the report on Form
8-K to be filed by Depositor with the Commission in connection with the offering
of the Certificates. Seller will cooperate with Depositor and
PriceWaterhouseCoopers LLP in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review set
forth in this Section 10 and to deliver the letters required of them under the
Underwriting Agreement and the Certificate Purchase Agreement.
Section 11. Expenses; Recording Costs. Seller agrees to pay to
Depositor or its designee all recording and filing fees incurred in connection
with the recording or filing of the documents listed in Section 3 of this
Agreement.
Section 12. Notices. All communications hereunder will be in
writing, and, (a) if sent to Depositor, will be mailed, delivered or telecopied
and confirmed to it at Credit Suisse First Boston Mortgage Securities Corp.,
Eleven Madison Avenue, 5th Floor, New York, New York 10010, Attention: Allan J.
Baum, Telecopy No.: (212) 325-8162; and (b) if sent to Seller, will be mailed,
delivered or telecopied to it at Credit Suisse First Boston Mortgage Capital
LLC, Eleven Madison Avenue, New York, New York 10010, Attention: President,
Telecopy No.: (212) 325-8160.
Section 13. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 14. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and legal representatives, and nothing expressed in this Agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; it being understood that (a) the indemnities
of Seller contained in that certain Indemnification Agreement dated November 5,
1999 among Seller, Depositor and the Underwriters, subject to all limitations
therein contained, shall also be for the benefit of the officers and directors
of Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the 1934 Act,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in Section 9 of this
Agreement, may be assigned to the Trustee as may be required to effect the
purposes of the Pooling and Servicing Agreement and, upon such assignment, the
Trustee shall succeed to such rights of Depositor hereunder. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 16. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 17. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other parties
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 18. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 19. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in
and to:
(i) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to any of the
property described in the Mortgage Loans, including the related Mortgage
Notes, Mortgages and title, hazard and primary mortgage insurance policies
identified on the Mortgage Loan Schedule, including all replacement
Mortgage Loans, and all distributions with respect thereto payable on and
after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property arising from or by virtue of the disposition of, or
collections with respect to, or insurance proceeds payable with respect
to, or claims against other persons with respect to, all or any part of
the collateral described in (i) above (including any accrued discount
realized on liquidation of any investment purchased at a discount); and
(iii) all cash and non-cash proceeds of the collateral
described in (i) and (ii) above;
(c) the possession by Depositor or its assignee of the Mortgage
Notes, the Mortgages and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser or a person designated by him or her, for
purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law. Seller, Depositor or their assignee at the direction of
Seller shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans and the proceeds
thereof, such security interest would be a perfected security interest of
first priority under applicable law and will be maintained as such
throughout the term of this Agreement. In connection herewith, Depositor
and its assignee shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the
relevant jurisdiction.
Section 20. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
as Seller
By: /s/ Edmund F. Taylor
-----------------------------------
Name: Edmund F. Taylor
Title: Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Allan J. Baum
-----------------------------------
Name: Allan J. Baum
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of October 11, 1999, between Credit Suisse First Boston Mortgage Capital LLC ("
the Seller") and Credit Suisse First Boston Mortgage Securities Corp. (" the
Depositor"). Capitalized terms used herein without definition have the meanings
given them in or by reference in the Agreement or, if not defined in the
Agreement, in the Pooling and Servicing Agreement, the Underwriting Agreement or
the Certificate Purchase Agreement, as the case may be.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated November 10,1999, between Depositor and the Initial Purchaser.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1999-C1.
"Closing Date" means November 10, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means, October 11, 1999.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Initial Purchaser" means Credit Suisse First Boston Corporation.
"Investment Officer" means any employee of Seller designated by
Seller as an "investment officer" or whose title includes the words "investment
officer."
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Mortgage Loan Pool" means the pool of Mortgage Loans, which are the
primary assets of the Trust Fund.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Mortgage Loans" means the mortgage loans to be sold to Depositor
pursuant to the Agreement, specifically identified in the Mortgage Loan Schedule
to the Agreement.
"Offered Certificates" means the Class A-1, Class A-2, Class A-X,
Class B, Class C, Class D, Class E and Class F Certificates.
"Offering Circular" means the confidential offering circular dated
November 5, 1999, describing certain classes of the Certificates.
"Originator" means any institution which originated a Mortgage Loan
for a related Borrower.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of October
11, 1999, among the Servicer, the Special Servicer, Depositor and the Trustee,
including the Mortgage Loan Schedule annexed thereto.
"Prospectus" means the Prospectus, dated October 12, 1999.
"Prospectus Supplement" means the Prospectus Supplement, dated
November 4, 1999, relating to the Offered Certificates.
"Underwriters" means Credit Suisse First Boston Corporation and
Morgan Stanley Mortgage Capital Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated
November 5, 1999, between Depositor and the Underwriters.
<PAGE>
SCHEDULE II
MORTGAGE LOAN SCHEDULE
<PAGE>
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
Loan No. 2 (Selig -Third and Broad), Loan No. 3 (Selig - 3131 Elliott Building)
and Loan No. 4 (Selig - Airborne Building)
Loan No. 6 (ACCOR - Mountain) and Loan No. 7 (ACCOR - California - North)
Loan No. 137 (Betty Jane Apartments) and Loan No. 138 (Poolside Apartments)
<PAGE>
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
1) Loan No. 88; Surf Club at Montauk
2) Loan No. 22; Ansley North
<PAGE>
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties contained in
Exhibit A corresponding to the roman numerals listed below:
(xvi):
Loan No. 9, L'Enfant Plaza - This Mortgage Loan is a 50%
participation (the "L'Enfant Participation") in a mortgage note
("L'Enfant Note B") which represents a portion of a mortgage loan
(the "L'Enfant Whole Loan") which was originated by the Seller on
September 18, 1998. The L'Enfant Whole Loan consists of Note A
("L'Enfant Note A") and L'Enfant Note B. Neither the L'Enfant Note A
nor the participation in the remaining 50% of L'Enfant Note B is
included in the Trust Fund. Such remaining 50% participation in the
L'Enfant Note B will initially be retained by the Seller or an
affiliate of the Seller. L'Enfant Note A is held by the trustee of
the Depositor's Commercial Mortgage Pass-Through Certificates,
Series 1998-C2 (the "1998-C2 Securitization"). The L'Enfant Note B
is subject to an intercreditor agreement (the "L'Enfant
Intercreditor Agreement") with the trustee of the 1998-C2
Securitization. All amounts received in respect of the L'Enfant
Participation will be allocated between L'Enfant Note A and L'Enfant
Note B pro rata in accordance with the amounts due thereunder. The
L'Enfant Intercreditor Agreement generally requires that all amounts
due under the L'Enfant Note B be paid to the Trustee, as holder of
the L'Enfant Note B. The participation agreement pursuant to which
the L'Enfant Participation was created provides that the Trustee
will allocate amounts received on account of the L'Enfant Note B
among the Trust and the holder of the remaining 50% participation in
the L'Enfant Note B. L'Enfant Note A and L'Enfant Note B are
cross-collateralized and cross-defaulted.
(xxv):
Loan No. 30, Investor's Business Daily Building -- The Phase I and
Phase II environmental assessments revealed the presence of
groundwater contamination arising from underground storage tanks
that once existed on the property but were subsequently removed.
Funds sufficient to cure such findings have not been escrowed by the
Borrower. The Borrower has received an indemnity (the
"Indemnification") from Citicorp North America, Inc. ("Citicorp"),
the previous owner of the Investor's Business Daily Property. The
Indemnification indemnifies and holds harmless the Borrower from any
costs, liabilities, claims, lawsuits and expenses arising out of the
conditions disclosed in the environmental reports. The
Indemnification also requires that Citicorp cooperate with any
governmental agencies having jurisdiction over removal and
remediation of hazardous materials and diligently seek sign-off
clearance from such governmental agencies. The Indemnification runs
to the benefit of the Seller and its successors in connection with
any securitization of the Mortgage Loan.
(xxix)(K):
Loan No. 5, Tallahassee Mall -- Insurance proceeds must be used to
rebuild in all cases, with any surplus being deposited into the
lockbox.
(xxix)(L):
Loan No. 9, L'Enfant Plaza -- The Seller has not been given the
right to enter into a new lease upon termination of the ground
lease; however, the ground lease may only be terminated, after
notice to Seller, for non-payment of ground rent, which equals
$500.00 per year. Seller has the right to cure any Tenant default
under the ground lease.
(xxxiii):
Loan No. 1, Exchange Apartments -- The related Borrower and an
affiliate thereof, are the borrowers under a mezzanine loan (the
"Exchange Apartments Mezzanine Loan") with an aggregate principal
balance of $6,000,000, made by the Union Planters Bank, N.A. The
Exchange Apartments Mezzanine Loan is secured by a pledge of 99% of
the membership interests of the principals of the Borrower in the
Borrower. The Exchange Apartments Mezzanine Loan matures on
September 1, 2002 and bears interest at a per annum rate equal to
the prime rate plus 1%.
Loan No. 2, Selig- Third and Broad; Loan No. 3, Selig- 3131 Elliot
Building; Loan No. 4, Selig- Airborne Building -- Selig Real Estate
Holdings Twelve, L.L.C., the regular member of the related
Borrowers, and certain affiliates of Martin Selig (the principal of
the related Borrowers), are the borrowers under a mezzanine loan
(the "Selig Mezzanine Loan") with an aggregate principal balance of
$23,100,000, made by Starwood Financial Trust, a Maryland real
estate investment trust, on April 27, 1999. The Selig Mezzanine Loan
is secured by, among other things, a pledge of the regular
membership interests in each of the related Borrowers and by the
equity of certain other special purpose real estate borrowers. The
Selig Mezzanine Loan matures on April 27, 2004 and bears interest at
a per annum rate of 15%.
Loan No. 9, L'Enfant Plaza -- Potomac Creek Associates LP II, the
limited partner of the related Borrower, is the borrower under a
mezzanine loan (the "L'Enfant Mezzanine Loan") with an aggregate
principal balance of $2.5 million, made by the Seller on September
18, 1998. The L'Enfant Mezzanine Loan is secured by, among other
things, a pledge of the limited partnership interests in the related
Borrower and the stock of the general partner of the Borrower. The
L'Enfant Mezzanine Loan matures on September 12, 2005 and bears
interest at a per annum rate equal to the greater of (i) LIBOR plus
5.235% and (ii) 10.325%. The Seller also owns a preferred equity
interest (as such holder, the "L'Enfant Special Limited Partner") in
the related Borrower having an initial equity investment in the
amount of $45,400,000 (the "L'Enfant Preferred Equity Interest").
The L'Enfant Special Limited Partner is entitled to receive
preferred monthly distributions at a yield equal to the greater of
(i) LIBOR plus 5.235% and (ii) 10.325%. The L'Enfant Preferred
Equity Interest is scheduled to be redeemed in full on September 12,
2005.
Loan No. 122, Ansley North Cooperative, Inc. -- The related Borrower
has encumbered the Mortgaged Property with a $258,100.00 second
mortgage. The note matures on January 1, 2012 and amortizes over 15
years. The note bears interest at a rate of 8.69% through and
including December 31, 1999. Beginning January 1, 2000 and every
three years thereafter the interest rate is adjusted based on 3-year
U.S. Treasury notes plus 2.75%.
Loan No. 61, Grand Cove I Apartments -- The related Borrower has
encumbered the Mortgaged Property with a credit line second mortgage
which secures an amount of up to $600,000. The note matures on the
earlier of (a) March 1, 2013 or (b) the date of closing of any
refinancing or prepayment or default under the Mortgage Loan. The
note bears interest at LIBOR plus 2.75%.
(xxxiv):
Loan No. 68, Hill Castle Apartments; Loan No. 76, Oasis Apartments;
Loan No. 94, Orchard Square Office Park; Loan No. 117, 4711 Callan
Blvd. Apartments; Loan No. 126, Sequoia Apartments; Loan No. 127,
Broadmill Apts.; Loan No. 129, Chick Hampton Office Building; Loan
No. 131, 287 South 6th Av.; Loan No. 133, 350 Pleasant Street; Loan
No. 135, Azadgan Center; Loan No. 138, Josephine Apartments; Loan
No. 141, 2555 "D" Street; Loan No. 142, Tempe Manor Apartments; Loan
No. 145, Desert Winds Apartments; Loan No. 148, 1327 2nd Street;
Loan No. 149, Crown Apartments; Loan No. 151, Gladstone & Benton
Apartments; Loan No. 152, Country Manor; Loan No. 153, Homestead Inn
Apartments; -- The Borrowers under these Mortgage Loans are
individuals or a combination of individuals and living trusts.
Loan No. 38, Town and Country Office Park; Loan No. 93,
Scandia-Hemmann Apartments; Loan No. 115, Country Village
Apartments; Loan No. 134, Eckerd's Pittsburgh; Loan No 136, Jeanne
Estates Apartments; Loan No. 140, 1011-1019 Ocean Front Walk; Loan
No. 144, Betty Jane Apartments; Loan No. 249, Poolside Apartments;
-- This representation is not true with respect to these Mortgage
Loans.
Loan No. 20, Kings Village Corp; Loan No. 56, Sea Crest at
Amagansett Corp.; Loan No. 61, Grand Cove I Apartments; Loan No. 81,
The Westhampton Bath & Tennis Club; Loan No. 83, Ocean Beach Resort,
Ltd.; Loan No. 88, Surf Club at Montauk Corp.; Loan No. 99, Port
Royal Motel Cooperative; Loan No. 116, 12 West 32nd St. Tenant Corp;
Loan No. 120, 11825 Owners Corp; Loan No. 122, Ansley North
Cooperative, Inc.; -- This representation is not true with respect
to these Mortgage Loans, however, these Mortgage Loans were made to
cooperative corporations the activities of which consist of the
ownership and operation of the related Mortgaged Properties and
related activities.
(xxxv):
Loan No. 68, Hill Castle Apartments; Loan No. 76, Oasis Apartments;
Loan No. 94, Orchard Square Office Park; Loan No. 117, 4711 Callan
Blvd. Apartments; Loan No. 126, Sequoia Apartments; Loan No. 127,
Broadmill Apts.; Loan No. 129, Chick Hampton Office Building; Loan
No. 131, 287 South 6th Av.; Loan No. 133, 350 Pleasant Street; Loan
No. 135, Azadgan Center; Loan No. 138, Josephine Apartments; Loan
No. 141, 2555 "D" Street; Loan No. 142, Tempe Manor Apts.; Loan No.
145, Desert Winds Apartments; Loan No. 148, 1327 2nd Street; Loan
No. 149, Crown Apartments; Loan No. 151, Gladstone & Benton
Apartments; Loan No. 152, Country Manor; Loan No. 153, Homestead Inn
Apartments; -- The related Borrowers under these Mortgage Loans are
individuals or a combination of individuals and living trusts,
therefore, there are no restrictions to the related Borrower's
carrying additional unsecured indebtedness.
Loan No. 93, Scandia-Hemmann Apartments; Loan No. 134, Eckerd's
Pittsburgh; Loan No. 136, Jeanne Estates Apartments; Loan. No. 140,
1011-1019 Ocean Front Walk; Loan No. 147, Clark Apartments; -- There
are no restrictions to the related Borrower's carrying additional
unsecured indebtedness.
Loan No. 10, Holiday Inn - Broadway -- The related Borrower is the
obligor under an unsecured subordinate loan (the "Holiday Inn -
Broadway Subordinate Loan") from its affiliates in the amount of
$3,059,290. The Holiday Inn-Broadway Subordinate Loan is
non-interest bearing and is not payable until the Mortgage Loan is
paid in full. A subordination and standstill agreement is in place
between the subordinate lender and the Seller.
Loan No. 79, Sandy Ridge Apartments - The related Borrower is the
obligor under an unsecured subordinate loan made by New Jersey
Realty Company in the original principal amount of $2,734,168. The
loan is subordinated to the Mortgage Loan and no payment of
principal or interest on this debt is permitted until June 11, 2034,
which is five years beyond the amortization term of the Mortgage
Loan.
Loan No. 116, 12 West 32nd Street Tenants Corp.; -- The related
Borrower under this loan is a cooperative corporation and may obtain
subordinate mortgage financing up to an amount of $500,000 if, among
other things, (a) the principal amount of the subordinate mortgage
loan plus all other indebtedness then secured by the Mortgaged
Property does not exceed the lesser of (i) 20% of the value of the
Mortgaged Property as a residential co-operative or (ii) 35% of the
value of the Mortgaged Property as a multifamily residential rental
apartment building; (b) the subordinate mortgage loan: (i) matures
at the same time or later than the Mortgage Loan and amortizes over
a period of at least 20 years, (ii) does not provide for negative
amortization or interest accrual and is not a participating loan,
(iii) bears an interest rate equal to or less than the Mortgage
Loan, (iv) provides that any casualty or condemnation proceeds will
be disbursed as provided in the Mortgage Loan, (v) the subordinate
mortgage loan is held by a bank with at least $2.5B in assets and
$100M in net worth; (c) the subordinate mortgage loan is used solely
to fund capital reserves and/or capital improvements; (d) the
subordinate mortgage loan expressly provides that it is subject and
subordinate to the Mortgage Loan, that the subordinate mortgagee
shall upon request enter into a satisfactory, recordable
subordination and standstill agreement and the subordinate mortgage
loan contains notice and cure provisions; and (e) an appraisal of
the Mortgaged Property must show an appraised value of not less than
$4,150,000.00.
Loan No. 120, 11825 Owners Corp.; The related Borrower under this
loan is a cooperative corporation and may obtain subordinate
mortgage financing up to an amount of $500,000 if, among other
things, (a) the principal amount of the subordinate mortgage loan
plus all other indebtedness then secured by the Mortgaged Property
does not exceed the lesser of (i) 20% of the value of the Mortgaged
Property as a residential co-operative or (ii) 35% of the value of
the Mortgaged Property as a multifamily residential rental apartment
building; (b) the subordinate mortgage loan: (i) matures at the same
time or later than the Mortgage Loan and amortizes over a period of
at least 20 years, (ii) does not provide for negative amortization
or interest accrual and is not a participating loan, (iii) bears an
interest rate equal to or less than the Mortgage Loan, (iv) provides
that any casualty or condemnation proceeds will be disbursed as
provided in the first mortgage; (v) the subordinate mortgage loan is
held by a bank with at least $2.5B in assets and $100M in net worth;
(c) the subordinate mortgage loan is used solely to fund capital
reserves and/or capital improvements; and (d) the subordinate
mortgage loan expressly provides that it is subject and subordinate
to the Mortgage Loan and contains notice and cure provisions; and
(e) an appraisal of the Mortgaged Property must show an appraised
value of not less than $4,740,000.00.
Loan No. 83, Ocean Beach Resort, Ltd. -- The related Borrower under
this loan is a cooperative corporation and may obtain subordinate
mortgage financing up to an amount of $250,000 if, among other
things, (a) the principal amount of the subordinated mortgage loan
plus all other indebtedness then secured by the Mortgaged Property
does not exceed 50% of the value of the Mortgaged Property as a
multifamily residential rental apartment building; (b) the
subordinate mortgage loan: (i) matures at the same time or later
than the Mortgage Loan, (ii) does not provide for negative
amortization or interest accrual and is not a participating loan,
(iii) provides that any casualty or condemnation proceeds will be
disbursed as provided in the Mortgage Loan and; (c) the subordinate
mortgage loan is used solely to fund capital reserves and/or capital
improvements. The Borrower is also allowed to incur additional
unsecured indebtedness of up to $150,000 without the consent of the
Seller.
Loan No. 88, Surf Club at Montauk Corp.; Loan No. 99, Port Royal
Motel Cooperative - The related Borrowers are cooperative
corporations and are allowed to incur additional unsecured
indebtedness up to $50,000 without the consent of the Seller.
Loan No. 56, Sea Crest at Amagansett Corp. -- The related Borrower
is a cooperative corporation and is allowed to incur additional
unsecured indebtedness up to $150,000 without the consent of the
Seller.
Loan No. 81, The Westhampton Bath & Tennis Club -- The related
Borrower is a cooperative corporation and is allowed to incur
additional unsecured indebtedness up to $300,000 without the consent
of the Seller.
(xxxvii):
Loan No. 42, Easton Commons Plaza Shopping Center - This
representation is true and accurate except that the Mortgaged
Property currently shares a tax parcel with three undeveloped
outparcels owned by an affiliate of the related Borrower. The
related Borrower has covenanted to make all necessary applications
to obtain separate tax parcel status on the three undeveloped
outparcels before the start of the 2000 tax year. The related
Borrower has also covenanted that it will not permit any
improvements to be made on the outparcels that would increase the
amount of property taxes payable on such outparcels. At origination
of the Mortgage Loan an amount sufficient to pay all taxes due on
the Mortgaged Property and the three undeveloped outparcels was
escrowed.
(liii):
Loan No. 9, L'Enfant Plaza - This representation is true and
accurate except that fraud and material and intentional
misrepresentations are not carve outs to the non-recourse provisions
but fraudulent misrepresentation is a carve out to the non-recourse
provisions. Additionally, the Mortgage Loan documents do not provide
that the related Borrower will be liable for any acts of willful
waste.
Loan No. 28, Tops Appliance Realty; Loan No. 15, White Lodging
Summary - WL Indiana Residence Inn- Indianapolis -- This
representation is true and accurate except that willful misconduct
is not a carve out to the non-recourse provisions.
Loan No. 81, The Westhampton Bath & Tennis Club; Loan No. 83, Ocean
Beach Resort, Ltd. - This representation is true and correct except
that voluntary bankruptcy is not a carve out to the non-recourse
provisions. Additionally, the Mortgage Loan documents do not provide
that the related Borrower will be liable for any acts of willful
waste. It should be noted that these Mortgage Loans were made to
cooperative corporations the activities of which consist of the
ownership and operation of the related Mortgaged Properties and
related activities.
Loan No. 115, Country Village Apartments -- This Mortgage Loan
allows recourse to the related Borrower for (i) the first 50% of the
outstanding principal and (ii) the first 50% of costs of all accrued
interest and other sums due, repayment of which is guaranteed by the
principals of the related Borrower.
Loan No. 127, Broadmill Apts. -- This Mortgage Loan allows recourse
to the related Borrower up to an amount equal to 15% of the
outstanding principal and 15% of accrued interest and other sums
due, repayment of which is guaranteed by a principal of the related
Borrower.
Loan No. 128, West Wood Village Apts. -- This Mortgage Loan allows
recourse to the related Borrower for (i) up to 20% of the
outstanding principal balance as of the date of an Event of Default
and (ii) up to 20% of all accrued interest and other sums due
(inclusive of late charges, foreclosure costs, attorneys' fees and
other costs of collection and enforcement), repayment of which is
guaranteed by the principals of the related Borrower.
Loan No. 68, Hill Castle Apartments; Loan No. 76, Oasis Apartments;
Loan No. 93, Scandia-Hemmann Apartments; Loan No. 126, Sequoia
Apartments; Loan No. 133, 350 Pleasant Street; Loan No. 135, Azadgan
Center; Loan No. 136, Jeanne Estates Apartments; Loan No. 141, 2555
"D" Street; Loan No. 145, Desert Winds Apartments; Loan No. 147,
Clark Apartments; Loan No. 148, 1327 2nd Street; Loan No. 149, Crown
Apartments; Loan No. 151, Gladstone & Benton Apartments; Loan No.
152, Country Manor; Loan No. 153, Homestead Inn Apartments -- These
Mortgage Loans are full recourse to the related Borrower.
Loan No. 20, Kings Village Corp.; Loan No. 56, Sea Crest at
Amagansett Corp; Loan No. 61, Grand Cove I Apartments; Loan No. 88,
Surf Club at Montauk Corp; Loan No. 99, Port Royal Motel
Cooperative; Loan No. 122, Ansley North Cooperative, Inc. - This
representation is true and accurate except that there are no carve
outs to the non-recourse provisions. It should be noted that these
Mortgage Loans were made to cooperative corporations the activities
of which consist of the ownership and operation of the related
Mortgaged Properties and related activities.
(liv)
Loan No. 27, Courtyard by Marriott-Scottsdale; Loan No. 64,
Courtyard by Marriott -- With respect to these Mortgage Loans, their
Mortgage Rates increase to the greater of the Base Rate plus 5% and
the Index Rate plus 5% after their respective Anticipated Repayment
Dates. Prior to the Closing Date, the Seller will execute and
deliver to the related Borrowers a waiver of any interest accruing
at a rate above the Mortgage Rate plus 2.00%, such waiver to be
effective for so long as the Trustee is the holder of such Mortgage
Loans.
<PAGE>
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
The Seller represents and warrants with respect to each Mortgage
Loan, as applicable, that as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Mortgage Note or Mortgage was subject to any assignment (other
than to the Seller), participation or pledge, and the Seller had good and
marketable title to, and was the sole owner of, the related Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, assignment of leases (if
any) and other agreement executed in connection with such Mortgage Loan is the
legal, valid and binding obligation of the related borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim, or right of
rescission available to the related borrower with respect to such Mortgage Note,
Mortgage, assignment of leases and other agreements;
(v) Each related assignment of leases creates a valid collateral or
first priority assignment of, or a valid first priority security interest in,
certain rights under the related lease, subject only to a license granted to the
related borrower to exercise certain rights and to perform certain obligations
of the lessor under such lease, including the right to operate the related
Mortgaged Property; no person other than the related borrower owns any interest
in any payments due under such lease that is superior to or of equal priority
with the lender's interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the assignment of leases, if any, or
assignment of any other agreement executed in connection with such Mortgage Loan
from the Seller to the Depositor constitutes the legal, valid and binding
assignment from the Seller to the Depositor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally,
or by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and, each related Mortgaged Property has not
been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), and such Mortgaged Property is free and clear of any mechanics' and
materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property; any security
agreement, chattel mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a valid and
enforceable lien on property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally or by
the application of general principles of equity).
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related borrower in the Mortgage
Loan not to be true;
(x) The Seller has no knowledge that the material representations
and warranties made by each related borrower in such Mortgage Loan are not true
in any material respect;
(xi) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the original principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller and its successors and assigns as
to such lien, subject only to (a) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property and (c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property (items (a), (b) and (c) collectively,
"Permitted Encumbrances"); the premium for such policy was paid in full; such
policy was issued by a title insurance company licensed to issue policies in the
state in which the related Mortgaged Property is located and is assignable to
the Depositor and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement; no claims
have been made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder and the Seller
covenants that it will not make any future advances under the Mortgage Loan to
the related borrower;
(xiii) As of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by the
Seller, as applicable, and to the knowledge of Seller as of the Closing Date,
each related Mortgaged Property is free of any material damage that would affect
materially and adversely the value of such Mortgaged Property as security for
the Mortgage Loan or reserves have been established to remediate such damage
and, as of the closing date for each Mortgage Loan and, to the Seller's
knowledge, as of the date hereof, there is no proceeding pending for the total
or partial condemnation of such Mortgaged Property that would have a material
adverse effect on the value of the Mortgaged Property;
(xiv) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgage
Property within three months of origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xvi) Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xviii) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan and the origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in accordance with customary
industry standards;
(xix) All taxes and governmental assessments that became due and
owing prior to the Closing Date with respect to each related Mortgaged Property
have been paid or an escrow of funds in an amount sufficient to cover such
payments has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies in connection therewith and all such escrows
and deposits have been conveyed by the Seller to the Depositor and identified as
such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost (with no deduction for physical depreciation) and the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the related Mortgaged Property; each related Mortgaged Property is also covered
by business interruption insurance which covers a period of not less than 12
months and comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; such insurance names the
lender under the Mortgage Loan and its successors and assigns as a named or
additional insured; other than the Credit Lease Loan, each related Mortgage Loan
obligates the related borrower to maintain all such insurance and, at such
borrower's failure to do so, authorizes the lender to maintain such insurance at
the borrower's cost and expense and to seek reimbursement therefor from such
borrower;
(xxii) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) material non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b) event
(other than payments due but not yet delinquent) which, with the passage of time
or with notice and the expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure, and there is no exemption
available to the borrower which would interfere with such right to foreclose
(except as may be imposed by bankruptcy, insolvency, moratorium, redemption or
other similar laws affecting creditors' rights generally, or by general
principles of equity) and to the Seller's knowledge, no borrower is a debtor in
a state or federal bankruptcy or insolvency proceeding;
(xxv) At origination, each borrower represented and warranted that
except as set forth in certain environmental reports and to its knowledge it has
not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related borrower or an affiliate or an
affiliate thereof agreed to indemnify, defend and hold the mortgagee and its
successors and assigns harmless from and against losses, liabilities, damages,
injuries, penalties, fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in connection
with such Mortgage Loan. A Phase I environmental report and with respect to
certain Mortgage Loans, a Phase II environmental report, was conducted by a
reputable environmental engineer in connection with such Mortgage Loan, which
report did not indicate any material non-compliance with applicable
environmental laws or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous materials was
indicated in any such report, funds sufficient to cure such findings have been
escrowed by the related borrower and held by the related mortgagee or an
operations and maintenance program has been required to be instituted by the
related borrower. To the best of the Seller's knowledge, in reliance on such
environmental reports and except as set forth in such environmental reports,
each Mortgaged Property is in material compliance with all applicable federal,
state and local environmental laws, and to the best of the Seller's knowledge,
no notice of violation of such laws has been issued by any governmental agency
or authority, except, in all cases, as indicated in certain environmental
reports or other documents previously provided to the Rating Agencies; and the
Seller has not taken any action which would cause the Mortgaged Property to not
be in compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxvi) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) each Mortgage Loan with a Stated Principal Balance
of over $20,000,000 also contains the provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
consent of the holder of the Mortgage, (and the mortgage requires the mortgagor
to pay all fees and expenses associated with obtaining such consent) a
controlling interest in the related Borrower is directly or indirectly
transferred or sold;
(xxvii) All improvements included in any MAI appraisals are within
the boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which the Seller has obtained title
insurance against losses arising therefrom and no improvements on adjoining
parcels encroach onto the related Mortgaged Property except for de minimis
encroachments;
(xxviii) The mortgage loan schedule which is attached as an exhibit
to the Pooling and Servicing Agreement is complete and accurate in all material
respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest of the
lessee to be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors or
assigns in a manner that would adversely affect the security provided by
the related Mortgage. To the Seller's best knowledge, there has been no
material change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the related
mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends not
less than 10 years beyond the stated maturity of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber the
ground lessor's fee interest;
(E) The ground lease is assignable to the lender under the
leasehold estate and its assigns without the consent of the lessor
thereunder;
(F) As of the Closing Date, the ground lease is in full force
and effect, the Seller has received no notice that any default beyond
applicable notice and grace periods has occurred, and there is no existing
condition which, but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by the
lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect the
security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest rate are paid in
full, neither the lessee nor the lessor under the ground lease will have
an option to terminate or modify the ground lease without the prior
written consent of the lender as a result of any casualty or partial
condemnation, except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are cross-collateralized,
all other loans that are cross-collateralized by such Mortgage Loans are
included in the Trust Fund;
(xxxi) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan, other
than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair market
value of such real property, as evidenced by an MAI appraisal conducted within
12 months of the origination of the Mortgage Loan, was at least equal to 80% of
the principal amount of the Mortgage Loan (a) at origination (or if the Mortgage
Loan has been modified in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage Loan was not in default or
default with respect thereto was not reasonably foreseeable, the date of the
last such modification) or (b) at the Closing Date; provided that the fair
market value of the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregated basis) and
(B) a proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregate basis);
(xxxiii) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in this Exhibit A or in the related Mortgage Loan Purchase Agreement;
(xxxiv) The loan documents executed in connection with each Mortgage
Loan require that the related borrower be a single-purpose entity (for this
purpose, "single-purpose entity" shall mean an entity, other than an individual,
that is formed or organized solely for the purpose of owning and operating one
or more Mortgaged Properties, is prohibited from engaging in any business
unrelated to such property and the related Mortgage Loan, does not have any
assets other than those related to its interest in the related Mortgaged
Property or its financing, or any indebtedness other than as permitted under the
related Mortgage Loan);
(xxxv) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property and, except in
connection with trade debt and equipment financings in the ordinary course of
borrower's business, from carrying any additional indebtedness, except, in each
case, liens contested in accordance with the terms of the Mortgage Loans;
(xxxvi) Each borrower covenants in the Mortgage Loan documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, is served by public utilities and services generally available in the
surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a survey of
the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency, with respect to certain Mortgage Loans, or the Secretary of
Housing and Urban Development with respect to other Mortgage Loans, as having
special flood hazards, the terms of the Mortgage Loan require the borrower to
maintain flood insurance or at such borrowers failure to do so, authorizes the
Lender to maintain such insurance at the cost and expense of the borrower;
(xxxix) To the knowledge of the Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly qualified under applicable
law to serve as such, currently so serves and is named in the deed of trust or
has been substituted in accordance with applicable law, and except in connection
with a trustee's sale after a default by the related borrower, no fees are
payable to such trustee;
(xl) With respect to the ACCOR Loans:
(A) the base rental payments under each ACCOR Credit Lease are
equal to or greater than the payments due under the loan documents
executed in connection with the related ACCOR Credit Lease Loan and are
payable without notice or demand, and without setoff, counterclaim,
recoupment, abatement, reduction or defense and a Residual Value Policy
has been obtained;
(B) the obligations of the Tenant under each ACCOR Credit
Lease, including, but not limited to, the obligation of Tenant to pay
fixed and additional rent, are not affected by reason of any damage to or
destruction of any portion of the related ACCOR Credit Lease Property; any
taking of such ACCOR Credit Lease Property or any part thereof by
condemnation or otherwise; or any prohibition, limitation, interruption,
cessation, restriction, prevention or interference of Tenant's use,
occupancy or enjoyment of such ACCOR Credit Lease Property; except that
the Tenant under either ACCOR Credit Lease may terminate such ACCOR Credit
Lease in the event of a significant casualty or a significant
condemnation; provided, however, the Tenant must either purchase the ACCOR
Credit Lease Property for an amount sufficient to purchase defeasance
collateral to defease a portion of the ACCOR Loan equal to the allocated
loan amount for such Mortgage Property or substitute a replacement
property of equal or greater value;
(C) every obligation associated with managing, owning,
developing and operating each ACCOR Credit Lease Property, including, but
not limited to, the costs associated with utilities, taxes, insurance,
capital and structural improvements, maintenance and repairs is an
obligation of the Tenant;
(D) neither ACCOR Credit Lease Borrower has a monetary
obligation under their respective ACCOR Credit Lease that has not been
met, or any nonmonetary obligations under their respective ACCOR Credit
Lease the breach of which would result in either the abatement of rent, a
right of setoff or the termination of the related ACCOR Credit Lease;
(E) the Tenant under either ACCOR Credit Lease can not
terminate or abate rent under either ACCOR Credit Lease for any reason
prior to the payments in full of (a) the principal balance of the related
ACCOR Loan, (b) all accrued and unpaid interest on such ACCOR Loan and (c)
any other sums due and payable under such ACCOR Loan; except that the
Tenant under either ACCOR Credit Lease may terminate such ACCOR Credit
Lease in the event of a significant casualty or a significant
condemnation; provided, however, the Tenant must either purchase the ACCOR
Credit Lease Property for an amount sufficient to purchase defeasance
collateral to defease a portion of the ACCOR loan equal to the allocated
Loan amount for such Mortgage Property or substitute a replacement
property of equal or greater value;
(F) if the Tenant assigns an ACCOR Credit Lease or sublets the
related ACCOR Credit Lease Property, the Tenant remains primarily
obligated under such ACCOR Credit Lease unless each Rating Agency has
confirmed in writing that such transfer or sublet will not result in a
downgrade, qualification or withdrawal of the then current ratings of the
Certificates;
(G) the Tenant has agreed to indemnify the ACCOR Credit Lease
Borrower from any claims of any nature relating to both ACCOR Credit
Leases and the ACCOR Credit Lease Properties;
(H) if the obligations of the Tenant under either ACCOR Credit
Lease are guaranteed by a guarantor pursuant to a guaranty, such guaranty
is the legal, valid and binding obligation of the guarantor, has been
validly assigned to the mortgagee, is binding on the guarantor's
successors and assigns, and may not be amended or released without the
mortgagee's consent and the guaranty states that it represents the
unconditional obligation of the guarantor without any right of offset,
counter claim or defense and is a guarantee of payment and performance,
not merely of collection;
(I) each ACCOR Credit Lease contains customary and enforceable
provisions which render the rights and remedies of the lessor thereunder
adequate for the enforcement and satisfaction of the lessor's rights
thereunder;
(J) in reliance on a tenant estoppel certificate and
representations made by the Tenant under both ACCOR Credit Leases or
representations made by the related borrower under the Mortgage Loan
documents, as of the date of origination of each ACCOR Loan and to the
knowledge of Seller as of the Closing Date (a) each ACCOR Credit Lease was
in full force and effect, and no default by the borrower or the Tenant has
occurred under either ACCOR Credit Lease, nor is there any existing
condition which, but for the passage of time or the giving of notice, or
both, would result in a default under the terms of either ACCOR Credit
Lease, (b) none of the terms of either ACCOR Credit Lease have been
impaired, waived, altered or modified in any respect, (c) the Tenant has
been released, in whole or in part, from its obligations under the ACCOR
Credit Leases, (d) there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to either ACCOR Credit Lease, nor will
the operation of any of the terms of the ACCOR Credit Leases, or the
exercise of any rights thereunder, render either ACCOR Credit Lease
unenforceable, in whole or in part, or subject to any right of rescission,
offset, abatement, diminution, defense or counterclaim, and no such right
of rescission, offset, abatement, diminution, defense or counterclaim has
been asserted with respect thereto and (e) each ACCOR Credit Lease has a
term ending on or after the final maturity of the related ACCOR Loan;
(K) the Mortgaged Property is not subject to any lease other
than the related ACCOR Credit Lease, no person has any possessory interest
in, or right to occupy, the Mortgaged Property except under and pursuant
to such ACCOR Credit Lease and the Tenant under the related ACCOR Credit
Lease is in occupancy of the Mortgaged Property;
(L) the lender is entitled to notice of any event of default
from the Tenant under the ACCOR Credit Leases and a reasonable opportunity
to cure;
(M) the Tenant under each ACCOR Credit Lease is required to
make all rental payments directly to the lender, its successors and
assigns under the related ACCOR Loan;
(N) both ACCOR Loans provide that the related ACCOR Credit
Lease cannot be modified without the consent of the lender thereunder;
(O) both ACCOR Loans have a DSCR equal to or greater than
1.00x;
(P) both ACCOR Loans are Balloon Loans and will have an
outstanding principal balance equal to or less than 50% of the original
principal balance; and
(Q) Residual Value Policy No. 01-01-20-0239 is in effect for
the California North Loan and Residual Value Policy No. 01-01-20-0244 is
in effect for the ACCOR Mountain Loan, each of which policies was issued
by R.V.I. America Insurance Company;
(xli) With respect to the ACCOR Loans:
(A) The claims on the Residual Value Policy will be payable to
the loss payee and the Trustee, on behalf of the Certificateholders, has
been designated as the loss payee;
(B) Pursuant to the terms of the Residual Value Policy, the
person designated as loss payee is only obligated to file a notice of
final claim with R.V.I. America Insurance Company in order to collect the
insured amount;
(C) The Residual Value Policy premium has been paid in full as
of the effective date of such policy;
(D) The Residual Value Policy cannot be terminated prior to
the termination date;
(E) The effective date for each ACCOR Loan on the Residual
Value Policy is prior to the Closing Date;
(F) The date upon which the outstanding principal balance of
the ACCOR Loan is reduced to zero is the policy termination date;
(G) The insured value is a pre-determined amount for each
ACCOR Loan and, unless otherwise noted, is equal to the expected Mortgage
Loan balance at Mortgage Loan maturity or expiration of initial lease
term;
(H) The insured value shall always be greater than the amount
R.V.I. America Insurance Company will pay to the loss payee upon the
notification of a claim (i.e., lesser of (i) the insured value and (ii)
the outstanding principal balance at the time the claim is made, plus all
accrued interest, less any sales proceeds received by the loss payee);
(I) The Residual Value Policy cannot be amended at any time
without the consent of the lender;
(J) The Residual Value Policy will not contain borrower
transfer restriction;
(K) The lease termination date does not occur prior to the
policy termination date or Mortgage Loan maturity date; and
(L) R.V.I. America Insurance Company is required to pay claims
made under the Residual Value Policy (subject to compliance with the
payment requirements under the Residual Value Policy), within ten business
days after receipt of such claims.
(xlii) To the knowledge of the Seller as of the Closing Date, there
was no pending action, suit or proceeding, arbitration or governmental
investigation against any borrower or Mortgaged Property, an adverse outcome of
which would materially and adversely affect such borrower's ability to perform
under the related Mortgage Loan;
(xliii) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of preferred
equity interests by the Preferred Interest Holder, as disclosed in the
Prospectus Supplement) and no funds have been received from any person other
than, or on behalf of, the related borrower for, or on account of, payments due
on the Mortgage Loan;
(xliv) To the extent required under applicable law, as of the
Cut-off Date, the Seller was authorized to transact and do business in the
jurisdiction in which each related Mortgaged Property is located, or failure to
be so authorized does not materially affect the ability of the Seller to
transact business in the jurisdiction in which each related Mortgaged Property
is located;
(xlv) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvi) Except as disclosed in the Prospectus Supplement, in
connection with Crossed Loans and Multi-Property Loans, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (a) payment in full or defeasance of
the related Mortgage Loan, (b) releases of unimproved out-parcels or (c)
releases of portions of the Mortgaged Property which will not have a material
adverse effect on the value of the collateral for the related Mortgage Loan;
(xlvii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all Mortgage Loans other
than Credit Lease Loans and with respect to all casualty losses or takings in
excess of a specified percentage of the related loan amount, the lender (or a
trustee appointed by it) having the right to hold and disburse such proceeds as
the repair or restoration progresses or (b) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
(xlviii) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, together with each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller and each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement executed by the Seller in blank which the
Trustee or its designee is authorized to complete (and but for the insertion of
the name of the assignee and any related filing information which is not yet
available to the Seller) is in suitable form for filing in the filing office in
which such financing statement was filed;
(xlix) To the Seller's knowledge, (a) all material commercial leases
affecting the Mortgaged Properties securing the Mortgage Loans are in full force
and effect and (b) there exists no default under any such material commercial
lease either by the lessee thereunder or by the related borrower that could give
rise to the termination of such lease;
(l) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property. With respect to properties with a Stated
Principal Balance of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(li) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision) and all Prepayment Premiums and Yield Maintenance Charges
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(lii) With respect to any Mortgage Loan that pursuant to the
mortgage documents can be defeased, (i) the Mortgage Loan cannot be defeased
within two years of the Closing Date, (ii) the borrower can pledge only United
States government securities in an amount sufficient to make all scheduled
payments under the Mortgage Loan when due, (iii) the borrower is required to
provide independent certified public accountants certify that the collateral is
sufficient to make such payments, (iv) the loan may be required to be assumed by
a single-purpose entity designated by the holder of the Mortgage Loan, and (v)
the borrower is required to provide an opinion of counsel be provided that the
trustee has a perfected security interest in such collateral prior to any other
claim or interest;
(liii) The mortgage loan documents for each Mortgage Loan provide
that such Mortgage Loan is non-recourse to the related parties thereto except
for certain acts including the fraud, willful misconduct or material and
intentional misrepresentation by the related borrower and/or its affiliates and
any act resulting in the Mortgaged Property becoming an asset in a voluntary
bankruptcy or insolvency proceeding. Additionally, the Mortgage Loan Documents
for each Mortgage Loan provide that the related borrower thereunder shall be
liable to the Seller for any losses incurred by the Seller due to (i) the
misapplication or misappropriation of rents, insurance proceeds or condemnation
awards, (ii) any willful act of material waste, (iii) any breach of the
environmental covenants contained in the related Mortgage Loan Documents, and
(iv) fraud;
(liv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (i) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (ii) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (iii) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Servicer; and (iv) any cash flow from the
related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures.
(lv) Except as disclosed in the Prospectus Supplement, not more than
5% of the aggregate initial principal amount of the Mortgage Loans have the same
Mortgagor or, to the Seller's best knowledge, have mortgagors that are
affiliates of each other;
(lvi) The servicing and collection practices used with respect to
(i) the Mortgage Loans originated by the Seller since their origination, and
(ii) the Mortgage Loans purchased by the Seller (the "Purchased Mortgage Loans")
since the time of such purchase, have, in each case, been legal and meet
customary standards utilized by prudent commercial mortgage loan servicer. The
servicing and collection practices used with respect to the Purchased Mortgage
Loans prior to their sale to the Seller were, to the best of knowledge of the
Seller, legal and met customary standards utilized by prudent commercial
mortgage loan servicers;
(lvii) 28 CSFB Mortgage Loans securing 1.45% of the Initial Pool
Balance are covered by an Environmental Insurance Policy issued by Commerce and
Industry Insurance Company; all premiums therefor have been paid in full and
such policy is in full force and effect. All environmental conditions actually
known by the Seller, including any "Pollution Conditions" (as defined in the
Environmental Insurance Policy) actually known by the Seller, have been
disclosed to Commerce and Industry Insurance Company.
(lviii) Each of the Participation and Intercreditor Agreement (the
"L'Enfant Participation Agreement") relating to Loan No. 9 on the Mortgage Loan
Schedule (the L'Enfant Loan) and the Co-Lender Agreement relating to Loan No. 1
on the Mortgage Loan Schedule (the Exchange Apartments Loan) represent legal,
valid and binding obligations of the Seller, enforceable against the Seller, as
the Other B Note Participant (as defined in the L'Enfant Participation
Agreement) and as the holder of the Exchange Apartments Other Note (as defined
in the Prospectus Supplement), respectively, enforceable against the Seller in
accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization of 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 of at law).
<PAGE>
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
________________________, _____________________, being duly sworn,
deposes and says:
1. that he is an authorized signatory of Credit Suisse First Boston
Mortgage
Capital LLC ("CSFBMC");
2. that CSFBMC is the owner and holder of a mortgage loan in the
original principal amount of $ secured by a mortgage (the "Mortgage")
on the premises known as located in ;
3. (a) that CSFBMC, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original note
and believes that said original note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a note in the original sum of $ made by , to
CS First Boston Mortgage Capital Corp., under date of
(the "Note");
4. that the Note is now owned and held by CSFBMC;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except CSFBMC; and
7. upon assignment of the Note by CSFBMC to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor") and subsequent assignment by
the Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series (the "Trustee") (which assignment may, at the discretion
of the Depositor, be made directly by CSFBMC to the Trustee) CSFBMC covenants
and agrees (a) promptly to deliver to the Trustee the original Note if it
is subsequently found, and (b) to indemnify and hold harmless the Trustee and
its successors and assigns from and against any and all costs, expenses and
monetary losses arising as a result of CSFBMC's or the Depositor's failure to
deliver said original Note to the Trustee.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
-----------------------------
Authorized Signatory
Sworn to before me this
_____ day of October , 1999
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of , 1999, Credit Suisse First Boston Mortgage
Capital LLC, a Delaware limited liability company, whose address is Eleven
Madison Avenue, New York, New York 10010 ("ASSIGNOR") in consideration of
ten and 00/100 ($10.00) dollars and other good and valuable consideration,
paid by The Chase Manhattan, a New York banking corporation, as trustee for
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, whose address is 450 West 33rd
Street, New York, New York 10001 ("ASSIGNEE"), receipt of which is
acknowledged by ASSIGNOR, hereby sells, assigns, transfers, sets over and
conveys unto the ASSIGNEE certain mortgage(s) and assignments of leases,
rents and profits and other collateral documents as follows: See Schedule
"A" attached hereto and incorporated herein by this reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or
warranty of any kind or nature, express or implied except as expressly set forth
in that certain Mortgage Loan Purchase Agreement, dated as of _______ __, 1999
between ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
<PAGE>
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment
the __ day of ________ 199_.
IN PRESENCE OF:___
By:
--------------------------------
Name:
Title:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this _____ day of _________, 199_, before me the undersigned, a
NOTARY PUBLIC OF ______________, personally appeared , as ___________of Credit
Suisse First Boston Mortgage Capital LLC, a Delaware limited liability company,
who, I am satisfied, was the maker of the foregoing instrument and who then
stated and acknowledged to me that, as such officer and maker (1) he was
authorized to execute the foregoing instrument on behalf of said limited
liability company and (2) he executed said instrument as the act and deed of
said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in the day and year last above written.
Signature
------------------------------
Print Name
-----------------------------
Residing at
----------------------------
----------------------------
----------------------------
A NOTARY PUBLIC OF__________
[AFFIX SEAL] My Commission expires on____________________
<PAGE>
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
TO
THE CHASE MANHATTAN BANK, AS TRUSTEE
RECORD AND RETURN TO:
<PAGE>
Exhibit D
Form of Seller's In-House Counsel Opinion
================================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
MORGAN STANLEY MORTGAGE CAPITAL INC.
(Seller)
-------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 11, 1999
-------------------------------------------
==============================================================================
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date.................
Section 2. Closing Date Actions.........................................
Section 3. Conveyance of Subject Mortgage Loans.........................
Section 4. Depositor's Conditions to Closing............................
Section 5. Seller's Conditions to Closing...............................
Section 6. Representations and Warranties of Seller.....................
Section 7. Obligations of Seller........................................
Section 8. Representations and Warranties of Depositor..................
Section 9. Survival of Certain Representations, Warranties and
Covenants....................................................
Section 10. Accountant's Letters.........................................
Section 11. Expenses; Recording Costs....................................
Section 12. Notices......................................................
Section 13. Examination of Mortgage Files................................
Section 14. Successors...................................................
Section 15. Governing Law................................................
Section 16. Severability.................................................
Section 17. Further Assurances...........................................
Section 18. Counterparts.................................................
Section 19. Treatment as Security Agreement..............................
Section 20. Recordation of Agreement.....................................
Schedule I Schedule of Transaction Terms
Schedule II-A MS Mortgage Loan Schedule
Schedule II-B FINOVA Capital Mortgage Loan Schedule
Schedule II-C FINOVA Owner Trust Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and
Warranties on MS Mortgage Loans
Exhibit A Representations and Warranties of Seller Regarding the MS
Mortgage Loans
Exhibit B Form of Lost Mortgage Note Affidavit
Exhibit C Form of Assignment of Mortgage(s) and Assignment of Assignment
of Lessor's Interests in Leases, Rents and Profits
Exhibit D Form of Seller's In-House Counsel Opinion
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of October 11, 1999, is made by and between MORGAN STANLEY MORTGAGE CAPITAL
INC., a New York corporation ("Seller") and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation (the "Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the Mortgage Loans identified on the schedule annexed hereto as Schedule II-A
(the "MS Mortgage Loans") and the Mortgage Loans identified on the schedules
annexed hereto as Schedule II-B and Schedule II-C (the "FINOVA Mortgage Loans,"
and collectively with the MS Mortgage Loans, the "Subject Mortgage Loans"). The
FINOVA Mortgage Loans listed on Schedule II-B are those acquired by the Seller
pursuant to the FINOVA Capital Mortgage Loan Purchase Agreement and the FINOVA
Mortgage Loans listed on Schedule II-C are those acquired by the Seller pursuant
to the FINOVA Owner Trust Mortgage Loan Purchase Agreement. Schedules II-A, II-B
and II-C are referred to collectively herein as the "Mortgage Loan Schedule."
Depositor intends to deposit the Subject Mortgage Loans and other assets into
the Trust Fund created pursuant to the Pooling and Servicing Agreement and to
cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Subject Mortgage Loans listed in the Mortgage Loan Schedule to
The Chase Manhattan Bank as custodian (in such capacity, the "Custodian") or as
trustee (in such capacity, the "Trustee"), against receipt by Seller of a trust
receipt, pursuant to an arrangement between Seller and the Custodian.
Section 2. Closing Date Actions. The sale of the Subject Mortgage
Loans shall take place on the Closing Date, subject to and simultaneously with
the deposit of the Subject Mortgage Loans into the Trust Fund, the issuance of
the Certificates and the sale of (a) the Offered Certificates by Depositor to
the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing shall take place at the offices of Cadwalader,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, or such other
location as agreed upon between the parties hereto. On the Closing Date, the
following actions shall take place in sequential order on the terms set forth
herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Subject Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price (as defined herein) shall be paid by Depositor to Seller or at its
direction by wire transfer in immediately available funds to an account
designated by Seller on or prior to the Closing Date. The "Mortgage Loan
Purchase Price" paid by Depositor shall be an amount determined in
accordance with the Letter of Understanding dated November 3, 1999 by and
among Morgan Stanley & Co. Incorporated, Morgan Stanley Mortgage Capital
Inc., Credit Suisse First Boston Mortgage Capital LLC and Credit Suisse
First Boston Corporation (the "Letter of Understanding").
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Subject Mortgage Loans (together with certain other mortgage loans) to the
Trustee for the benefit of the Holders of the Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Offered Certificates pursuant to the
Underwriting Agreement, and Depositor shall sell to the Initial Purchaser,
and the Initial Purchaser shall purchase from Depositor, the Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Offered Certificates for sale
to the public pursuant to the Prospectus and the Prospectus Supplement and
the Initial Purchaser will privately place certain classes of the
Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Subject Mortgage Loans. On the Closing
Date, Seller shall sell, convey, assign and transfer, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under (i)
each of the Subject Mortgage Loans identified on the Mortgage Loan Schedule and
all property of Seller described in Section 19 of this Agreement and (ii) rights
with respect to the FINOVA Mortgage Loans arising under (x) that certain
mortgage loan purchase agreement, dated as of June 30, 1999 (the "FINOVA Capital
Mortgage Loan Purchase Agreement"), between the Seller and FINOVA Realty
Capital, Inc. ("FINOVA Realty Capital"), other than Articles 2, 4, 5, 6, 7,
Sections 8.5.14, 8.5.41, 8.5.42, and Articles 10, 12 and 14 thereof (such
provisions referred to in this clause, the "Redacted FINOVA Realty Capital
Provisions"), and (y) that certain mortgage loan purchase agreement, dated as of
June 30, 1999 (the "FINOVA Owner Trust Mortgage Loan Purchase Agreement"), among
the Seller, FINOVA Capital Corporation and the FINOVA Commercial Mortgage Loan
Owner Trust 1998-1 (the "FINOVA Owner Trust"), other than Articles 2, 4, 5, 6,
7, Sections 8.5.14, 8.5.41, 8.5.42, and Articles 10, 12 and 14 thereof (such
provisions referred to in this clause, the "Redacted FINOVA Owner Trust
Provisions" and collectively with the Redacted FINOVA Realty Capital Provisions,
the "Redacted FINOVA Provisions"). The parties acknowledge that rights and
obligations under the Redacted FINOVA Provisions are not being assigned
hereunder and copies of such Redacted FINOVA Provisions have not been provided
to the Depositor for its review.
On or prior to the Closing Date, each Mortgage File with respect to
the MS Mortgage Loans shall be delivered by Seller to the Custodian. Each such
Mortgage File shall contain the following documents:
(a) the original Mortgage Note, or with respect to those MS Mortgage
Loans listed in Schedule IV hereto, a "lost note" affidavit substantially
in the form of Exhibit B hereto and a true and complete copy of the
Mortgage Note, bearing, or accompanied by, all prior and intervening
endorsements or assignments thereof showing a complete chain of
endorsement or assignment from the Originator of the related Mortgage Loan
to Seller, and further endorsed (at the direction of Depositor given
pursuant to this Agreement) by Seller, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of The Chase Manhattan Bank, as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, without
recourse, representation or warranty, express or implied;"
(b) a duplicate original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies from
the applicable recording office) of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the related
Mortgage Loan to Seller, in each case with evidence of recording indicated
thereon;
(c) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) Assignment of Mortgage
substantially in the form of Exhibit C hereto, in recordable form, from
Seller to The Chase Manhattan Bank, as trustee for the registered Holders
of Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1999-C1;
(d) an original Assignment of Leases (if such item is a document
separate from the Mortgage), in recordable form;
(e) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) of any related assignment of
Assignment of Leases (if such item is a document separate from the
Mortgage) substantially in the form of Exhibit C hereto and the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the Originator of the related Mortgage Loan to Seller,
in each case with evidence of recording thereon;
(f) an original or a true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
executed by Seller in favor of The Chase Manhattan Bank, as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 1999-C1;
(h) originals or true and complete copies of all assumption,
modification, written assurance and substitution agreements, with evidence
of recording thereon, where appropriate, in those instances where the
terms or provisions of the related Mortgage or Mortgage Note or any
related security document have been modified or the related Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the related Mortgage Loan,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, or if the policy has not yet
been issued, a written binding commitment or interim binder, dated as of
the date the related Mortgage Loan was funded;
(j) the original or a true and complete copy of any guaranty of the
obligations of the Mortgagor under the related Mortgage Loan and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller, in each case with evidence of recording thereon;
(k) all UCC Financing Statements and continuation statements or
copies thereof filed with respect to the Subject Mortgage Loans;
(l) the original or a true and complete copy of the power of
attorney (with evidence of recording thereon) granted by the Mortgagor if
the Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(m) any intercreditor agreement relating to any debt of a Borrower
secured by the related Mortgaged Property other than the related Mortgage
Loan;
(n) if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a
copy of the UCC-1 financing statements, if any, submitted for filing with
respect to the Seller's security interest in the Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and UCC-2 or UCC-3
financing statements assigning such security interest to the Trustee on
behalf of the Certificateholders);
(o) any Loan Agreement;
(p) [Reserved];
(q) letters of credit, if any, relating to the Additional Collateral
Loans;
(r) the related intercreditor agreement, if any;
(s) the applicable participation documents, if any;
(t) any environmental insurance policies; and
(u) any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver an original recorded counterpart of any
of the documents required to be delivered pursuant to clauses (b), (d), (f),
(h), (k) (with respect to UCC financing statements filed other than in
accordance with the transfer contemplated by this Agreement) and (l) above with
evidence of recording or filing thereon concurrently with the execution and
delivery hereof, solely because of a delay caused by the public recording office
where such document or instrument has been delivered for recordation, Seller
shall deliver, or cause to be delivered, to the Custodian a duplicate original
or true copy of such document certified by the applicable public recording or
filing office to be a true and complete duplicate original or copy of the
original thereof submitted for recording or filing.
On or prior to the Closing Date, each Mortgage File with respect to
the FINOVA Mortgage Loans shall be delivered by Seller to the Custodian. Each
such Mortgage File shall contain all documents required to have been delivered
to the Seller pursuant to Section 3.2 of the FINOVA Capital Mortgage Loan
Purchase Agreement or pursuant to Section 3.2 of the FINOVA Owner Trust Mortgage
Loan Purchase Agreement.
Notwithstanding the foregoing, in the event that Seller cannot
deliver to the Custodian any UCC-2 or UCC-3 assignment with the filing
information of the UCC-1 financing statement being assigned, solely because of a
delay caused by the public filing office where such UCC-1 financing statement
has been delivered for filing, Seller shall deliver or cause to be delivered to
the Custodian a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. Seller, promptly upon receipt of the applicable filing
information of the UCC-1 financing statement being so assigned, shall deliver to
the Custodian the original UCC-2 or UCC-3 assignment with all appropriate filing
information set forth thereon.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Subject Mortgage Loans, minus that portion of any
such payment which is allocable to the period on or prior to the Cut-off Date.
All scheduled payments of principal due on or before the Cut-off Date and
collected after the Cut-off Date, together with the accompanying interest
payments, shall belong to Seller.
Upon the sale of the Subject Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the Subject
Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its affiliates solely for internal uses, shall immediately vest in
Depositor and shall be forwarded by Seller to the Custodian by overnight mail
for next-day delivery and retained and maintained, in trust, by the Custodian at
the will of Depositor, in such custodial capacity only. All Monthly Payments,
Principal Prepayments and other amounts received by Seller and not otherwise
belonging to Seller pursuant to this Agreement shall be sent by Seller within
three (3) Business Days of Seller's receipt thereof to the Servicer via wire
transfer for deposit by the Servicer into the Collection Account.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor under this Agreement shall be subject to the satisfaction, on the
Closing Date, of the following conditions:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
all of the representations and warranties of Seller under this Agreement
shall be true and correct in all material respects as of the Closing Date;
and no event shall have occurred with respect to Seller or any of the
Subject Mortgage Loans and related Mortgage Files which, with notice or
the passage of time, would constitute a material default under this
Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Custodian or
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other
than Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, which shall have been delivered to and
held by the Custodian on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) an officer's certificate of Seller, dated as of the
Closing Date, with certified copies of the charter, by-laws, and a
certificate of good standing dated as of a recent date of Seller;
(iv) an opinion of Seller's in-house counsel, dated the
Closing Date, in substantially the same form as Exhibit D attached hereto.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made herein, and on certificates or other documents furnished by officers of
Seller.
In rendering the opinion expressed above, such counsel may limit
such opinions to matters governed by the General Corporation Law of the State of
Delaware and the laws of the State of New York and the United States and shall
not be required to express any opinion with respect to the registration or
qualification of the Certificates under any applicable state or federal
securities laws.
(v) an opinion of Latham & Watkins, special counsel to Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as Depositor may approve):
Assuming the due authorization, execution and delivery of this
Agreement by Seller, this Agreement constitutes a valid and binding
agreement of Seller, enforceable against Seller in accordance with
its terms, except to the extent that enforcement hereof may be
limited by (x) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect and (y) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of,
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the laws of the State of New York and the
United States to the extent specifically referred to.
Such counsel shall also state that, on the basis of the information
gained in the course of its representation of the Seller, considered in light of
its understanding of applicable law and the experience it has gained through its
practice, nothing has come to its attention in the course of its review of the
prospectus dated October 12, 1999 and prospectus supplement dated November 4,
1999 (collectively, the "Prospectus") relating to the Depositor's Mortgage
Pass-Through Certificates, Series 1999-C1 (the "Certificates") and the
confidential offering circular (the "Offering Circular") dated November 4, 1999
relating to certain classes of the Certificates that would cause it to believe
that as of its date or as of the Closing Date, the information relating to the
Subject Mortgage Loans in the Prospectus contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(vi) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
and all of the representations and warranties of Depositor under this
Agreement shall be true and correct in all material respects as of the
Closing Date; and no event shall have occurred with respect to Depositor
which, with notice or the passage of time, would constitute a material
default under this Agreement, and Seller shall have received certificates
to that effect signed by authorized officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
Seller and Depositor, duly executed by all signatories other than Seller,
as required pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others and such
other documents required to evidence fulfillment of the conditions
set forth in this Agreement as Seller or its counsel may reasonably
request.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized, validly existing and in good standing
under the laws of the State of New York. Seller has conducted and is
conducting its business so as to comply in all material respects with all
applicable statutes and regulations of regulatory bodies or agencies
having jurisdiction over it, except where the failure so to comply would
not have a materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, investigation, action, suit or
proceeding before or by any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Seller, threatened, which
is reasonably likely to materially and adversely affect the performance by
Seller of this Agreement or the consummation of transactions contemplated
by this Agreement.
(ii) Neither the execution and delivery by Seller of this Agreement,
nor the compliance by Seller with the provisions hereof, nor the
consummation by Seller of transactions contemplated by this Agreement will
(I) conflict with or result in a breach of, or constitute a default or
result in the acceleration of any obligations under, the certificate of
incorporation of Seller or, after giving effect to the consents or the
taking of the actions contemplated by clause (II) of this subparagraph
(ii), any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on Seller or its properties or any of
the provisions of any material indenture or mortgage or any other material
contract or instrument to which Seller is a party or by which it or any of
its properties is bound or result in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument (other than
pursuant to this Agreement) or (II) require the consent of or notice to,
or any filing with, any person, entity or governmental body, which has not
been obtained or made by Seller, except where, in any of the instances
contemplated by clause (I) above or this clause (II), the failure to do so
will not have a material adverse effect on any transactions relating to
the sale of the Subject Mortgage Loans by Seller.
(iii) The execution and delivery by Seller of this Agreement, and
the consummation of transactions contemplated by this Agreement on the
terms set forth herein, have been duly authorized by all necessary
corporate action on the part of Seller and are within the corporate power
of Seller, and this Agreement has been duly executed and delivered by
Seller and constitutes a legal, valid and binding instrument, enforceable
against Seller in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights generally, and to general principles of equity and the
discretion of the court (regardless of whether enforcement of such
remedies is considered in a proceeding in equity or at law).
(iv) No consent, approval, authorization or order of, registration
or filing with, or notice to any federal, state or local governmental
authority or court that has not been obtained, made or given is required
in connection with the execution, delivery and performance of this
Agreement by Seller.
(v) Except as set forth on Schedule V hereto, the representations
and warranties contained in Exhibit A hereto are true and correct in all
material respects with respect to the MS Mortgage Loans as of the Closing
Date.
(b) In addition, the Seller hereby represents and warrants to the
Depositor and its assigns the following with respect to the FINOVA
Mortgage Loans:
(i) Seller has delivered to the Trustee the fully executed original
FINOVA Capital Mortgage Loan Purchase Agreement and FINOVA Owner Trust
Mortgage Loan Purchase Agreement, redacted to delete the Redacted FINOVA
Provisions;
(ii) The FINOVA Capital Mortgage Loan Purchase Agreement and FINOVA
Owner Trust Mortgage Loan Purchase Agreement are in full force and effect
and have not been modified or amended in any material respect;
(iii) The obligations of FINOVA Realty Capital, the FINOVA Owner
Trust and FINOVA Capital Corporation to cure or repurchase an affected
FINOVA Mortgage Loan for breach of representation or warranty as set forth
in the FINOVA Capital Mortgage Loan Purchase Agreement and the FINOVA
Owner Trust Mortgage Loan Purchase Agreement (the "FINOVA Loan Seller
Obligations") are the valid, legal, and binding obligations of FINOVA
Realty Capital, the FINOVA Owner Trust and FINOVA Capital Corporation,
enforceable against the FINOVA Realty Capital, the FINOVA Owner Trust and
FINOVA Capital Corporation in accordance with their terms;
(iv) The FINOVA Loan Seller Obligations have not been previously
assigned;
(v) The FINOVA Loan Seller Obligations are assignable in accordance
with their terms and the Seller has the full right, power and authority to
assign those sections of the FINOVA Capital Mortgage Loan Purchase
Agreement and FINOVA Owner Trust Mortgage Loan Purchase Agreement assigned
hereunder and all of the representations assigned hereunder; and
(vi) The FINOVA Loan Seller Obligations are not subject to, and are
being transferred to the Depositor (and subsequently to the Trust) free
and clear of, any and all liens, pledges, charges, security interests or
other encumbrances.
(vii) Other than as noted on Schedule V hereto, the Mortgage Loan
Seller has no knowledge that any of the representations and warranties
contained in the FINOVA Mortgage Capital Mortgage Loan Purchase Agreement
or the FINOVA Owner Trust Mortgage Loan Purchase Agreement are not true
and correct in all material respects as of the Closing Date.
(viii)No scheduled principal and interest under any FINOVA Mortgage
Loan is 30 days or more delinquent as of the Closing Date.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the MS Mortgage Loans and shall
continue in full force and effect, subject to Section 14 of this Agreement,
notwithstanding any restrictive or qualified endorsement on the mortgage notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties contained in or required
to be made by Seller pursuant to Section 6 of this Agreement shall not be
impaired by any review or examination of the Mortgage Files or other documents
evidencing or relating to the Subject Mortgage Loans or any failure on the part
of Depositor to review or examine such documents and shall inure to the benefit
of any initial transferee of the Subject Mortgage Loans from Depositor
including, without limitation, the Trustee for the benefit of the Holders of the
Certificates.
Upon discovery of any Defect (as defined herein) in a Mortgage File
related to a Subject Mortgage Loan, Depositor or its assignee shall promptly
notify Seller in writing of such Defect and request that Seller cure such Defect
within 90 days from the date Seller was notified of such Defect; provided,
however, that if such Defect would cause such Mortgage Loan to be other than a
"qualified mortgage" under Section 860G(a)(3) of the Code, then such cure shall
be within 90 days of discovery of such Defect. A document in the Mortgage File
shall be deemed to have a "Defect" if (a) any document required to be included
in the Mortgage File is not in the possession of the Custodian, on behalf of the
Trustee, within the time required to be delivered pursuant to this Agreement or
(b) such document has not been properly executed or is otherwise defective on
its face; provided, however, that a document shall not be deemed to have a
Defect if such Defect is caused by the failure by Depositor to execute such
document after having been directed by Seller to execute such document. If
Seller does not correct or cure such Defect within such period, Seller shall
purchase such Mortgage Loan from the Trust Fund at the Purchase Price pursuant
to Section 2.03 of the Pooling and Servicing Agreement.
Within 90 days of the receipt of written notice by Seller of a
breach (a "Breach") of any of the representations, warranties or covenants of
Seller with respect to the MS Mortgage Loans set forth in Exhibit A to this
Agreement or, with respect to the FINOVA Mortgage Loans, the representations,
warranties and covenants contained in Section 6(b) hereof (or, if any such
Breach would cause the Subject Mortgage Loan to be other than a "qualified
mortgage" under Section 860G(a)(3) of the Code, within 90 days of discovery of
the Breach), which, in either case, materially and adversely affects either (i)
the interests of Depositor or the Certificateholders in the related Subject
Mortgage Loan or (ii) the value of the related MS Mortgage Loan, Seller shall
cure such Breach and, if Seller does not correct or cure such Breach within such
period, or if such Breach cannot be so cured, then Seller shall purchase the
affected Subject Mortgage Loan at the Purchase Price pursuant to Section 2.03 of
the Pooling and Servicing Agreement. If Seller is required to repurchase any
Subject Mortgage Loan that is part of a Mortgage Group (as defined herein),
Seller shall also be required to repurchase the remaining MS Mortgage Loans in
such Mortgage Group. For purposes of this paragraph, a "Mortgage Group" is any
group of MS Mortgage Loans identified as a Mortgage Group on Schedule III to
this Agreement.
The Purchase Price for any repurchased Mortgage Loan shall be
payable to Depositor or, subsequent to the assignment of the MS Mortgage Loans
to the Trustee, the Trustee as its assignee, by wire transfer of immediately
available funds to the account designated by Depositor or its assignee, and
Depositor or its assignee, upon receipt of such funds, shall promptly release
the related Mortgage File or cause it to be released, to Seller and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in Seller title to any Mortgage
Loan released pursuant hereto. The Depositor or the Servicer, as applicable,
shall deliver to Seller an officer's certificate setting forth the calculation
of the Purchase Price.
Section 8. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its
business as it is conducted, and is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
qualification (except where the failure to qualify would not have a
materially adverse effect on the consummation of any transactions
contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the
corporate power of Depositor and have been duly authorized by Depositor
and neither the execution and delivery by Depositor of this Agreement nor
the compliance by Depositor with the provisions hereof, nor the
consummation by Depositor of the transactions contemplated by this
Agreement, will (i) conflict with or result in a breach of, or constitute
a default under, the certificate of incorporation or by-laws of Depositor
or, after giving effect to the consents or taking of the actions
contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on Depositor or its properties, or any of the provisions of any
material indenture or mortgage or any other material contract or other
instrument to which Depositor is a party or by which it is bound or result
in the creation or imposition of any lien, charge or encumbrance upon any
of its properties pursuant to the terms of any such indenture, mortgage,
contract or other instrument or (ii) require the consent of or notice to,
or any filing with any person, entity or governmental body, which has not
been obtained or made by Depositor, except where, in any of the instances
contemplated by clause (i) above or this clause (ii), the failure to do so
will not have a material and adverse effect on the consummation of any
transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally and to general principles of equity and the discretion of the
court (regardless of whether enforcement of such remedies is considered in
a proceeding in equity or at law).
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Depositor, threatened
against Depositor the outcome of which could be reasonably expected to
materially and adversely affect the consummation of any transactions
contemplated by this Agreement.
Section 9. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 11 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 10. Accountant's Letters. On or before the Closing Date,
PriceWaterhouseCoopers LLP will have reviewed the characteristics of the Subject
Mortgage Loans described in (a) the Mortgage Loan Schedule attached hereto and
set forth as an exhibit to the Pooling and Servicing Agreement and (b) the
computer disk prepared by Seller and provided to Depositor and will compare
those characteristics to, and ensure their agreement with (i) the description of
the Subject Mortgage Loans contained in the Prospectus Supplement and the
Offering Circular, respectively; (ii) original documentation and files of Seller
maintained with respect to each Mortgage Loan; and (iii) if applicable,
information with respect to such Subject Mortgage Loans contained in the report
on Form 8-K to be filed by Depositor with the Commission in connection with the
offering of the Certificates. Seller will cooperate with Depositor and
PriceWaterhouseCoopers LLP in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review set
forth in this Section 10 and to deliver the letters required of them under the
Underwriting Agreement and the Certificate Purchase Agreement.
Section 11. Expenses; Recording Costs. Seller and Depositor agree
that expenses shall be paid in accordance with the Letter of Understanding.
Section 12. Notices. All communications hereunder will be in
writing, and, (a) if sent to Depositor, will be mailed, delivered or telecopied
and confirmed to it at Credit Suisse First Boston Mortgage Securities Corp.,
Eleven Madison Avenue, 5th Floor, New York, New York 10010, Attention: Allan J.
Baum, Telecopy No.: (212) 325-8162; and (b) if sent to Seller, will be mailed,
delivered or telecopied to it at Morgan Stanley Mortgage Capital Inc., 1585
Broadway, New York, New York 10036, Attention: John Kessler, Telecopy No.: (212)
761-0350.
Section 13. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 14. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and legal representatives, and nothing expressed in this Agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; it being understood that (a) the indemnities
of Seller contained in that certain Indemnification Agreement dated November 5,
1999 among Seller, Depositor and the Underwriters, subject to all limitations
therein contained, shall also be for the benefit of the officers and directors
of Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the 1934 Act,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in Section 9 of this
Agreement, may be assigned to the Trustee as may be required to effect the
purposes of the Pooling and Servicing Agreement and, upon such assignment, the
Trustee shall succeed to such rights of Depositor hereunder. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 16. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 17. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other parties
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 18. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 19. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Subject Mortgage Loans
by Seller to Depositor as provided in this Agreement be, and be construed as, a
sale of the Subject Mortgage Loans by Seller to Depositor. It is, further, not
the intention of the parties that such conveyance be deemed a pledge of the
Subject Mortgage Loans by Seller to Depositor to secure a debt or other
obligation of Seller. However, in the event that, notwithstanding the intent of
the parties, the Subject Mortgage Loans are held to be property of Seller or if
for any reason this Agreement is held or deemed to create a security interest in
the Subject Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in
and to:
(i) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to any of the
property described in the Subject Mortgage Loans, including the related
Mortgage Notes, Mortgages and title, hazard and primary mortgage insurance
policies identified on the Mortgage Loan Schedule, including all
replacement Subject Mortgage Loans, and all distributions with respect
thereto payable on and after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property arising from or by virtue of the disposition of, or
collections with respect to, or insurance proceeds payable with respect
to, or claims against other persons with respect to, all or any part of
the collateral described in (i) above (including any accrued discount
realized on liquidation of any investment purchased at a discount); and
(iii) all cash and non-cash proceeds of the collateral
described in (i) and (ii) above;
(c) the possession by Depositor or its assignee of the Mortgage
Notes, the Mortgages and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser or a person designated by him or her, for
purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law. Seller, Depositor or their assignee at the direction of
Seller shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Subject Mortgage Loans and the
proceeds thereof, such security interest would be a perfected security
interest of first priority under applicable law and will be maintained as
such throughout the term of this Agreement. In connection herewith,
Depositor and its assignee shall have all of the rights and remedies of a
secured party and creditor under the Uniform Commercial Code as in force
in the relevant jurisdiction.
Section 20. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
MORGAN STANLEY MORTGAGE CAPITAL INC.,
as Seller
By: /s/ Russell A. Rahbany
--------------------------------------
Name: Russell A. Rahbany
Title: Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Allan J. Baum
--------------------------------------
Name: Allan J. Baum
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of October 11, 1999, between Morgan Stanley Mortgage Capital Inc. (the "Seller")
and Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor").
Capitalized terms used herein without definition have the meanings given them in
or by reference in the Agreement or, if not defined in the Agreement, in the
Pooling and Servicing Agreement, the Underwriting Agreement or the Certificate
Purchase Agreement, as the case may be.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated November 5, 1999, between Depositor and the Initial Purchaser.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1999-C1.
"Closing Date" means November 10, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means October 11, 1999.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Initial Purchaser" means Credit Suisse First Boston Corporation.
"Investment Officer" means any employee of Seller designated by
Seller as an "investment officer" or whose title includes the words "investment
officer."
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Mortgage Loan Pool" means the pool of Mortgage Loans, which are the
primary assets of the Trust Fund.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Offered Certificates" means the Class A-1, Class A-2, Class A-X,
Class B, Class C, Class D, Class E and Class F Certificates.
"Offering Circular" means the confidential offering circular dated
November 4, 1999, describing certain classes of the Certificates.
"Originator" means any institution which originated a Mortgage Loan
for a related Borrower.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of October
11, 1999, among the Servicer, the Special Servicer, Depositor and the Trustee,
including the Mortgage Loan Schedule annexed thereto.
"Prospectus" means the Prospectus, dated October 12, 1999.
"Prospectus Supplement" means the Prospectus Supplement, dated
October 12, 1999, relating to the Offered Certificates.
"Subject Mortgage Loans" means the mortgage loans to be sold to
Depositor pursuant to the Agreement, specifically identified in the Mortgage
Loan Schedule to the Agreement.
"Underwriters" means Credit Suisse First Boston Corporation and
Morgan Stanley & Co. Incorporated.
"Underwriting Agreement" means the Underwriting Agreement, dated
November 5, 1999, between Depositor and the Underwriters.
<PAGE>
SCHEDULE II-A
MS MORTGAGE LOAN SCHEDULE
<PAGE>
SCHEDULE II-B
FINOVA CAPITAL MORTGAGE LOAN SCHEDULE
<PAGE>
SCHEDULE II-C
FINOVA OWNER TRUST MORTGAGE LOAN SCHEDULE
<PAGE>
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
Loan No. 21 (Capetown Plaza Shopping Center), Loan No. 22 (Lewis County Mall)
and Loan No. 23 (Tampa Plaza Shopping Center)
<PAGE>
SCHEDULE IV
MORTGAGE LOANS WITH LOST MORTGAGE NOTES
None
<PAGE>
SCHEDULE V
EXCEPTIONS WITH RESPECT TO SELLER'S REPRESENTATIONS AND WARRANTIES
Reference is made to the Representation and Warranty contained in Section
6(b)(vii):
Loan No. 95, Murray's Discount Auto Store - The Seller is aware that
the borrower under the Murray's Discount Auto Store Summary Mortgage
Loan is currently less than 30 days delinquent in payment of its
real estate taxes. The Mortgage Loan Seller understands that the
Borrower timely provided for a portion of its current real estate
taxes but has disputed a recent increase in the amount of such taxes
and therefore is delinquent in an amount equal to approximately
$36,000.
<PAGE>
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MS MORTGAGE LOANS
The Seller represents and warrants with respect to each Mortgage
Loan, as applicable, that as of the Closing Date:
(i) Schedule II-A. The information set forth in Schedule II-A is
complete, true and correct in all material respects as of the date of this
Agreement and as of the Cut-off Date.
(ii) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is
a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
(iii) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
(iv) Lien; Valid Assignment. The Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph (xiii) below, enforceable first priority lien
upon the related Mortgaged Property, which includes all buildings located
thereon and all fixtures thereto, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, and (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability, value or current use of the Mortgaged Property or
the current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt (the foregoing items (a) through
(d) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph (xiii) below, enforceable security interest in favor of the holder
thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, and
such security interest is a first priority security interest, subject to any
prior purchase money security interest in such personal property and any
personal property leases applicable to such personal property. Notwithstanding
the foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
(v) Assignment of Leases and Rents. The Assignment of Leases set
forth in the Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph (xiii) below, enforceable first priority lien
and first priority security interest in the related Mortgagor's interest in all
leases, sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases, not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
(vi) Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in material
part, and the related Mortgaged Property has not been released from the lien of
such Mortgage, in whole or in material part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, except for any partial reconveyances of portions of the
real property that do not materially adversely affect the value of the property.
None of the terms of any Mortgage Note, Mortgage or Assignment of Leases has
been impaired, waived, altered or modified in any respect, except by written
instruments, all of which are included in the related Mortgage File.
(vii) Condition of Property; Condemnation. Except as set forth in an
engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property which were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
(viii) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
(ix) No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
(x) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph (xiii))
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. Each Mortgage Loan
contains a "due on sale" clause, which provides for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan if, without prior
written consent of the holder of the Mortgage, the property subject to the
Mortgage or any material portion thereof, is transferred, sold or encumbered
other than the junior liens listed on Schedule B attached hereto; provided,
however, that certain Mortgage Loans provide a mechanism for the assumption of
the loan by a third party upon the Mortgagor's satisfaction of certain
conditions precedent, and upon payment of a transfer fee, if any.
(xi) Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by the Seller, the Purchaser or any transferee
thereof except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(xii) Environmental Conditions. An environmental site assessment
meeting the requirements of the American Society of Testing and Materials was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) the related Mortgagor was required either to provide
additional security which was deemed to be sufficient by the originator to
remediate the problem and/or to obtain an operations and maintenance plan.
(xiii) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures a Mortgage Loan and that was executed by or
on behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreements.
(xiv) Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage, to be insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property with no deduction for depreciation, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the Mortgaged
Property; (c) a flood insurance policy (if any portion of the buildings or other
structures on Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency as having special flood hazards); and (d) a
comprehensive general liability insurance policy in amounts as are generally
required by commercial mortgage lenders, and in any event not less than $1
million per occurrence. Such insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured and requires prior
notice to the holder of the Mortgage of termination or cancellation. No such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured. Each Mortgage obligates the related Mortgagor to maintain
all such insurance and, upon such Mortgagor's failure to do so, authorizes the
holder of the Mortgage to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from such Mortgagor. Each Mortgage
provides that casualty insurance proceeds will be applied either to the
restoration or repair of the related Mortgaged Property or to the reduction of
the principal amount of the Mortgage Loan.
(xv) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property which are or may become a lien of priority equal to or higher than the
lien of the related Mortgage. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered unpaid until the
date on which interest and/or penalties would be first payable thereon.
(xvi) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
(xvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate or, if the related Mortgage
Loan is secured in whole or in part by the interest of a Mortgagor as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest"):
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between the Seller and related
lessor) permits the current use of the Mortgaged Property and
permits the interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination of the
related Mortgage Loan, with the exception of material changes
reflected in written instruments that are a part of the related
Mortgage File;
(B) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(D) Such Ground Lease is in full force and effect and no
material amendment to such Ground Lease is binding on mortgagee
unless mortgagee has consented thereto, and the Seller has received
no notice that an event of default has occurred thereunder, and, to
the Seller's knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other
agreement, (A) requires the lessor under such Ground Lease to give
notice of any default by the lessee to the holder of the Mortgage;
and (B) provides that no notice of termination given under such
Ground Lease is effective against the holder of the Mortgage unless
a copy of such notice has been delivered to such holder and the
lessor has offered to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
(F) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the receipt
of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than ten
years beyond the Stated Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the mortgagee, will be applied either
(A) to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it
the related Mortgage having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located.
(xviii) Escrow Deposits. All escrow deposits and payments relating
to each Mortgage Loan that are, as of the Closing Date required to be deposited
or paid have been so deposited or paid.
(xix) LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph (xix) shall be made on a pro rata basis in accordance with the
fair market values of the Mortgaged Properties securing such
cross-collateralized Mortgage Loans); or (b) substantially all the proceeds of
such Mortgage Loan were used to acquire, improve or protect the real property
which served as the only security for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
(xx) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of paragraph (xix)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (a)(ii) of paragraph (xix), including the proviso
thereto.
(xxi) Advancement of Funds by the Seller. No holder of a Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
(xxii) No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
(xxiii) Compliance with Usury Laws. Each Mortgage Loan complied with
all applicable usury laws in effect at its date of origination.
(xxiv) Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
(xxv) Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan. The Mortgages relating to those Mortgage Loans identified
on Schedule II-A hereto require the mortgagee to grant releases of portions of
the related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and (b) the payment of a release price set forth
therein and prepayment consideration in connection therewith.
(xxvi) No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for negative
amortization or for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
(xxvii) No Material Default. To the Seller's best knowledge, there
exists no material default, breach, violation or event of acceleration (and no
event which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs (iii),
(vii), (xxii), (xiv), (xv), (xvi) and (xvii) of this Exhibit A.
(xxviii) Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
(xxix) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination.
(xxx) Junior Liens. Schedule B attached hereto lists all Mortgage
Loans that permit the related Mortgaged Property to be encumbered by any lien
junior to the lien of the related Mortgage and describes any related debt
service coverage or similar criteria needed to be satisfied to obtain such
junior lien. Except as otherwise set forth on Schedule B, the Seller has no
knowledge that any of the Mortgaged Properties is encumbered by any lien junior
to the lien of the related Mortgage.
(xxxi) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgage
Loan or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(xxxii) Servicing. The servicing and collection practices used by
the Seller have been in all material respects legal, proper and prudent and have
met customary industry standards.
(xxxiii) Licenses and Permits. To the Seller's knowledge, based on
due diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgage Property as it was then operated.
(xxxiv) Collateral in Trust. The Mortgage Note for each Mortgage
Loan is not secured by any collateral (including any mortgage) that is not
included in the Trust.
(xxxv) Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-Off Date Principal Balance in excess of $20 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
(xxxvi) Non-Recourse Exceptions. The Mortgage Loan documents for
each Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the related obligors thereon except that either (i) such
provision does not apply in the case of fraud by the Mortgagor or (ii) such
documents provide that the Mortgagor shall be liable to the holder of the
Mortgage Loan for losses incurred as a result of fraud by the Mortgagor.
(xxxvii) Loan Underwriting. Each Mortgage Loan complies, in all
material respects, with all of the terms, conditions and requirements of the
Seller's underwriting standards in effect at the time of origination of such
Mortgage Loan.
(xxxviii) Servicing. No other person has been granted or conveyed
the right to service the Mortgage Loans or receive any consideration in
connection therewith.
<PAGE>
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_________________________, _________________, being duly sworn,
deposes and says:
1. that he is an authorized signatory of Morgan Stanley Mortgage
Capital Inc. ("MSMC");
2. that MSMC is the owner and holder of a mortgage loan in the
original principal amount of $_________ secured by a mortgage (the "Mortgage")
on the premises known as _______ _________ located in _______;
3. (a) that MSMC, after having conducted a diligent investigation of
its records and files, has been unable to locate the following original note and
believes that said original note has been lost, misfiled, misplaced or destroyed
due to a clerical error:
a note in the original sum of $_____________ made by_____________,
to ______________________, under date of ___________ (the "Note");
4. that the Note is now owned and held by MSMC;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except MSMC; and
7. upon assignment of the Note by MSMC to Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor") and subsequent assignment by the
Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by MSMC to the Trustee) MSMC
covenants and agrees (a) promptly to deliver to the Trustee the original Note if
it is subsequently found, and (b) to indemnify and hold harmless the Trustee and
its successors and assigns from and against any and all costs, expenses and
monetary losses arising as a result of MSMC or the Depositor's failure to
deliver said original Note to the Trustee.
MORGAN STANLEY MORTGAGE CAPITAL INC.
By:
------------------------------------------
Authorized Signatory
Sworn to before me this
_______ day of November, 1999
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of ___________________ 1999 Morgan Stanley Mortgage Capital
Inc., a Delaware Corporation, whose address is 1585 Broadway, New York, New York
10036 ("ASSIGNOR") in consideration of ten and 00/100 ($10.00) dollars and other
good and valuable consideration, paid by ________________, a New York banking
corporation, as trustee for Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, whose address is
450 West 33rd Street, New York, New York 10001 ("ASSIGNEE"), receipt of which is
acknowledged by ASSIGNOR, hereby sells, assigns, transfers, sets over and
conveys unto the ASSIGNEE certain mortgage(s) and assignments of leases, rents
and profits and other collateral documents as follows:
See Schedules "A-1" and "A-2" attached hereto and incorporated
herein by this reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or
warranty of any kind or nature, express or implied except as expressly set forth
in that certain Mortgage Loan Purchase Agreement, dated as of October 11, 1999
between ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
<PAGE>
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment
the __ day of __________ 1999.
IN PRESENCE OF:
By:
------------------------------------------
Name:
Title:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this ___ day of _____, 199_, before me the undersigned, a NOTARY
PUBLIC OF _______, personally appeared _______________, as _______________ of
Morgan Stanley Mortgage Capital Inc., a Delaware corporation, who, I am
satisfied, was the maker of the foregoing instrument and who then stated and
acknowledged to me that, as such officer and maker (1) he was authorized to
execute the foregoing instrument on behalf of said limited liability company and
(2) he executed said instrument as the act and deed of said limited liability
company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in _____________________ the day and year last above
written.
Signature
------------------------------------
Print Name
-----------------------------------
Residing at
----------------------------------
----------------------------------
----------------------------------
A NOTARY PUBLIC OF________________
[AFFIX SEAL] My Commission expires on____________________
<PAGE>
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
MORGAN STANLEY MORTGAGE CAPITAL INC.
TO
THE CHASE MANHATTAN BANK, AS TRUSTEE
RECORD AND RETURN TO:
<PAGE>
Exhibit D
Form of Seller's In-House Counsel Opinion
