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DLJ COMMERCIAL MORTGAGE CORP.,
as Depositor,
MIDLAND LOAN SERVICES, INC.,
as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2000
$886,241,440
Commercial Mortgage Pass-Through Certificates
Series 2000-CF1
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TABLE OF CONTENTS
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<TABLE>
<CAPTION>
SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
<S> <C> <C>
SECTION 1.01. Defined Terms..................................................................................2
SECTION 1.02. General Interpretive Principles...............................................................50
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool..........................................51
SECTION 1.04. Cross-Collateralized Mortgage Loans...........................................................53
<CAPTION>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II REGULAR
INTERESTS, CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
<S> <C> <C>
SECTION 2.01. Conveyance of Mortgage Loans..................................................................54
SECTION 2.02. Acceptance of Mortgage Assets by Trustee......................................................57
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage Loans by the
Mortgage Loan Seller and Union Capital; The Special Reserve Account...........................59
SECTION 2.04. Representations and Warranties of the Depositor...............................................64
SECTION 2.05. Representations and Warranties of the Master Servicer.........................................66
SECTION 2.06. Representations and Warranties of the Special Servicer........................................68
SECTION 2.07. Representations and Warranties of the Trustee.................................................69
SECTION 2.08. Designation of the Certificates...............................................................70
SECTION 2.09. Creation of REMIC I; Issuance of the REMIC I Regular Interests
and the REMIC I Class R; Certain Matters Involving REMIC I....................................71
SECTION 2.10. Conveyance of the REMIC I Regular Interests; Acceptance of the REMIC I Regular Interests by
Trustee.......................................................................................74
SECTION 2.11. Creation of REMIC II; Issuance of the REMIC II Regular Interests and the REMIC II Residual
Interest; Certain Matters Involving REMIC II..................................................74
SECTION 2.12. Conveyance of the REMIC II Regular Interests; Acceptance of the REMIC II Regular Interests by
Trustee.......................................................................................76
SECTION 2.13. Creation of REMIC III; Issuance of the REMIC III Regular Interest
Certificates and the REMIC III Residual Interest; Certain Matters Involving REMIC III.........77
SECTION 2.14. Acceptance of Grantor Trusts by Trustee; Issuance of the Class E and
Class R Certificates..........................................................................80
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
<S> <C> <C>
SECTION 3.01. Administration of the Mortgage Loans..........................................................82
SECTION 3.02. Collection of Mortgage Loan Payments..........................................................83
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts..........................................................83
SECTION 3.04. Collection Account, Distribution Account, Interest Reserve Account
and Excess Liquidation Proceeds Account.......................................................86
SECTION 3.05. Permitted Withdrawals From the Collection Account,
the Distribution Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account.......................................................................................89
SECTION 3.06. Investment of Funds in the Collection Account, Servicing Accounts,
Reserve Accounts and the REO Account..........................................................93
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.........................................................................95
SECTION 3.08. Enforcement of Alienation Clauses.............................................................98
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.....................................................99
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files..............................................102
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest on and Reimbursement of Servicing
Advances; Payment of Certain Expenses; Obligations of the Trustee and any Fiscal Agent
regarding Back-up
Servicing Advances...........................................................................103
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of
Certain Reports..............................................................................109
SECTION 3.13. Annual Statement as to Compliance............................................................112
SECTION 3.14. Reports by Independent Public Accountants....................................................113
SECTION 3.15. Access to Certain Information................................................................113
SECTION 3.16. Title to REO Property; REO Account...........................................................114
SECTION 3.17. Management of REO Property...................................................................115
SECTION 3.18. Sale of Mortgage Loans and REO Properties....................................................118
SECTION 3.19. Additional Obligations of Master Servicer....................................................121
SECTION 3.20. Modifications, Waivers, Amendments and Consents..............................................124
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping...............................................................................128
SECTION 3.22. Sub-Servicing Agreements.....................................................................129
SECTION 3.23. Controlling Class Representative.............................................................132
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative............................133
SECTION 3.25. Alternate Special Servicer...................................................................135
SECTION 3.26 Application of Default Charges...............................................................136
<CAPTION>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
<S> <C> <C>
SECTION 4.01. Distributions...............................................................................140
SECTION 4.02. Statements to Certificateholders; Certain Other Reports.....................................146
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SECTION 4.03. P&I Advances..............................................................................148
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses..........................150
SECTION 4.05. Calculations..............................................................................151
<CAPTION>
ARTICLE V
THE CERTIFICATES
<S> <C>
SECTION 5.01. The Certificates..........................................................................152
SECTION 5.02. Registration of Transfer and Exchange of Certificates.....................................152
SECTION 5.03. Book-Entry Certificates...................................................................158
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.........................................159
SECTION 5.05. Persons Deemed Owners.....................................................................159
SECTION 5.06. Certification by Certificate Owners.......................................................159
<CAPTION>
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
<S> <C>
SECTION 6.01. Liability of the Depositor, the Master Servicer and the Special Servicer..................161
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the Master
Servicer or the Special Servicer..........................................................161
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer, and
the Special Servicer......................................................................161
SECTION 6.04. Resignation of Master Servicer and Special Servicer.......................................162
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicer
and the Special Servicer..................................................................163
SECTION 6.06. Designation of Special Servicer by the Controlling Class..................................164
SECTION 6.07. Master Servicer or Special Servicer as Owner of a Certificate.............................165
<CAPTION>
ARTICLE VII
DEFAULT
<S> <C>
SECTION 7.01. Events of Default.........................................................................166
SECTION 7.02. Trustee to Act; Appointment of Successor..................................................169
SECTION 7.03. Notification to Certificateholders........................................................169
SECTION 7.04. Waiver of Events of Default...............................................................170
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default......................................170
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.........................................................................171
SECTION 8.02. Certain Matters Affecting the Trustee.....................................................172
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SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans............................................................174
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.............................................174
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee and Fiscal Agent..........174
SECTION 8.06. Eligibility Requirements for Trustee......................................................176
SECTION 8.07. Resignation and Removal of Trustee........................................................176
SECTION 8.08. Successor Trustee.........................................................................177
SECTION 8.09. Merger or Consolidation of Trustee........................................................178
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.............................................178
SECTION 8.11. Appointment of Custodians.................................................................179
SECTION 8.12. Access to Certain Information.............................................................179
SECTION 8.13. Appointment of Fiscal Agent...............................................................181
SECTION 8.14. Advance Security Arrangement..............................................................182
SECTION 8.15. Filings with the Securities and Exchange Commission.......................................183
ARTICLE IX
TERMINATION
<S> <C>
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans..........................185
SECTION 9.02. Additional Termination Requirements.......................................................187
<CAPTION>
ARTICLE X
ADDITIONAL TAX PROVISIONS
<S> <C>
SECTION 10.01. Tax Administration........................................................................188
SECTION 10.02. Depositor, Master Servicer, Special Servicer, Trustee and Fiscal Agent to Cooperate
with Tax Administrator....................................................................191
SECTION 10.03. Appointment of Tax Administrator..........................................................191
ARTICLE XI
MISCELLANEOUS PROVISIONS
<S> <C>
SECTION 11.01. Amendment.................................................................................192
SECTION 11.02. Recordation of Agreement; Counterparts....................................................193
SECTION 11.03. Limitation on Rights of Certificateholders................................................193
SECTION 11.04. Governing Law.............................................................................194
SECTION 11.05. Notices...................................................................................194
SECTION 11.06. Severability of Provisions................................................................195
SECTION 11.07. Successors and Assigns; Beneficiaries.....................................................195
SECTION 11.08. Article and Section Headings..............................................................195
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor.................................195
SECTION 11.10. Notices to Controlling Class Representative...............................................197
SECTION 11.11. Complete Agreement........................................................................197
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EXHIBITS
<S> <C>
EXHIBIT A-1 Form of Class S Certificates
EXHIBIT A-2 Form of Class A-1A and Class A-1B Certificates
EXHIBIT A-3 Form of Class A-2, Class A-3, Class A-4, Class B-1 and
Class B-2 Certificates
EXHIBIT A-4 Form of Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7, Class B-8, Class C and Class D Certificates
EXHIBIT A-5 Form of Class E Certificates
EXHIBIT A-6 Form of Class R Certificates
EXHIBIT B-1 Schedule of Mortgage Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT C Letter of Representations Among Depositor, Trustee and Initial Depositary
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2A Form of Loan Periodic Update File
EXHIBIT E-2B Form of Property File
EXHIBIT E-2C Form of Loan Set-up File
EXHIBIT E-3 Form of Comparative Financial Status Report
EXHIBIT E-4 Form of Delinquent Loan Status Report
EXHIBIT E-5 Form of Historical Loan Modification Report
EXHIBIT E-6 Form of Historical Liquidation Report
EXHIBIT E-7 Form of NOI Adjustment Worksheet
EXHIBIT E-8 Form of Operating Statement Analysis Report
EXHIBIT E-9 Form of REO Status Report
EXHIBIT E-10 Form of Servicer Watch List
EXHIBIT E-11 Form of Bond File
EXHIBIT E-12 Form of Collateral Summary File
EXHIBIT E-13 Form of Financial File
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess Servicing Fee Right
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess Servicing Fee Right
EXHIBIT G Form of Transferee Certificate in Connection with ERISA
(Definitive Subordinated Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT L-2 Information Request from Prospective Investor
EXHIBIT M Form of Mortgage Loan Purchase Agreement
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EXHIBIT N Form of Union Capital Agreement
EXHIBIT O Schedule of Designated Sub-Servicers
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This Pooling and Servicing Agreement, is dated and effective as of June 1,
2000, among DLJ COMMERCIAL MORTGAGE CORP. as Depositor, MIDLAND LOAN SERVICES,
INC. as Master Servicer, GMAC COMMERCIAL MORTGAGE CORPORATION as Special
Servicer and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION as Trustee.
PRELIMINARY STATEMENT:
Column Financial, Inc. (together with its successors in interest, "Column")
has sold to DLJ Commercial Mortgage Corp. (together with its successors in
interest, the "Depositor"), pursuant to the Mortgage Loan Purchase Agreement
dated as of June 20, 2000 (as such may from time to time hereafter be amended,
modified, supplemented and/or restated, the "Mortgage Loan Purchase Agreement"),
between Column as seller and the Depositor as purchaser, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1 (such
mortgage loans, the "Original Mortgage Loans"). A form of the Mortgage Loan
Purchase Agreement is attached hereto as Exhibit M.
The Depositor desires, among other things, to: (i) establish a trust fund,
consisting primarily of the Original Mortgage Loans and certain related rights,
funds and property; (ii) cause the issuance of mortgage pass-through
certificates in multiple classes, which certificates will, in the aggregate,
evidence the entire beneficial ownership interest in such trust fund; and (iii)
provide for the servicing and administration of the mortgage loans, including
the Original Mortgage Loans, and the other assets that from time to time
constitute part of such trust fund.
Norwest Bank Minnesota, National Association (together with its successors
in interest, "Norwest") desires to act as "Trustee" hereunder; Midland Loan
Services, Inc., (together with its successors in interest, "Midland") desires to
act as "Master Servicer" hereunder; and GMAC Commercial Mortgage Corporation
(together with its successors in interest, "GMACCM") desires to act as "Special
Servicer" hereunder.
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
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
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues interest on
a 30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property, the first
day on which such REO Property is considered to be acquired by the Trust within
the meaning of Treasury regulation Section 1.856-6(b)(1), which is the first day
on which the Trust is treated as the owner of such REO Property for federal
income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar month (or other
applicable accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that accrues interest
on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property collateral
(including any Letter of Credit) pledged and/or delivered by the related
Borrower and held by the mortgagee to secure payment on any Mortgage Loan.
"Additional Master Servicing Compensation" shall have the meaning assigned
thereto in Section 3.11(b).
"Additional Special Servicing Compensation" shall have the meaning assigned
thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Holders of any Class of REMIC III Regular
Interest Certificates receiving less than the total of their Current Interest
Distribution Amount, Carryforward Interest Distribution Amount and Principal
Distribution Amount for any Distribution Date.
"Additional Yield Amount" shall have the meaning assigned thereto in
Section 4.01(d).
"Adjusted REMIC II Remittance Rate" shall mean:
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(a) with respect to REMIC II Regular Interest A-1A, for any Interest
Accrual Period, 7.450% per annum;
(b) with respect to REMIC II Regular Interest A-1B, for any Interest
Accrual Period, 7.620% per annum;
(c) with respect to REMIC II Regular Interest A-2, for any Interest
Accrual Period, 7.760% per annum;
(d) with respect to REMIC II Regular Interest A-3, for any Interest
Accrual Period, 7.920% per annum;
(e) with respect to each of REMIC II Regular Interests B-3, B-4, B-5,
B-6, B-7, B-8, C and D, for any Interest Accrual Period, 6.998% per annum;
and
(f) with respect to each other REMIC II Regular Interest, for any
Interest Accrual Period, a rate per annum equal to the lesser of (i) the
related REMIC II Remittance Rate for such Interest Accrual Period and (ii)
the related "Fixed Cap Rate" specified below:
REMIC II REGULAR INTEREST FIXED CAP RATE
------------------------- --------------
A-4 8.020% per annum
B-1 8.490% per annum
B-2 8.330% per annum
"Administrative Fee Rate" shall mean, with respect to each Mortgage Loan
(and any successor REO Mortgage Loan), the sum of the related Master Servicing
Fee Rate, plus the Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any Advance at the
Reimbursement Rate, which is payable to the party hereto that made that Advance,
all in accordance with Section 3.11(g) or Section 4.03(d), as applicable.
"Advance Security Arrangement" shall have the meaning assigned thereto in
Section 8.14.
"Adverse Grantor Trust Event" shall mean either: (i) any impairment of the
status of either Grantor Trust Pool as a Grantor Trust; or (ii) the imposition
of a tax upon either Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on watch status in
contemplation of any such action with respect thereto).
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"Adverse REMIC Event" shall mean either: (i) any impairment of
the status of any REMIC Pool as a REMIC; or (ii) except as permitted by Section
3.17(a), the imposition of a tax upon any REMIC Pool or any of its assets or
transactions (including the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on prohibited contributions set forth in
Section 860G(d) of the Code).
"Affiliate" shall mean, 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.
"Agreement" shall mean this Pooling and Servicing Agreement, as it may be
amended, modified, supplemented or restated following the Closing Date.
"Alternate Special Servicer" shall have the meaning assigned thereto in
Section 3.25.
"A.M. Best" shall mean A.M. Best Company or its successor in interest.
"Annual Accountants' Report" shall have the meaning assigned thereto in
Section 3.14.
"Annual Performance Certification" shall have the meaning assigned thereto
in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD Loan, the
date specified in the related Mortgage Note, as of which Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is prior to the
Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property or REO
Property as to which an appraisal is required to be performed pursuant to the
terms of this Agreement, a narrative appraisal complying with USPAP (or, in the
case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal Balance
as of the date of such appraisal of $2,000,000 or less, either a limited
appraisal and a summary report or an internal valuation prepared by the Special
Servicer) that (i) indicates the "market value" of the subject property (within
the meaning of 12 CFR ss. 225.62(g)) and (ii) is conducted by a Qualified
Appraiser (except that, in the case of a Mortgage Loan or an REO Mortgage Loan
with a Stated Principal Balance as of the date of such appraisal of $2,000,000
or less, the appraiser may be an employee of the Special Servicer).
"Appraisal Reduction Amount" shall mean, with respect to any Required
Appraisal Loan, an amount (calculated as of the Determination Date immediately
following the later of the date on which the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof was obtained by the Special
Servicer pursuant to this Agreement and the date of the most recent Appraisal
Trigger Event with respect to such Required Appraisal Loan) equal to the excess,
if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan, as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer, the Trustee or
any Fiscal Agent, all unpaid interest (net of Default Interest and, in the
case of an ARD Loan after its Anticipated Repayment Date, Post-ARD
Additional
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Interest) accrued on such Required Appraisal Loan through the most recent
Due Date prior to such Determination Date, (c) all unpaid Special Servicing
Fees accrued in respect of such Required Appraisal Loan, (d) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent in respect of such
Required Appraisal Loan, together with all unpaid Advance Interest accrued
on such Advances, and (e) all currently due but unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents in
respect of the related Mortgaged Property or REO Property; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property, as applicable, as
determined by the most recent relevant Appraisal acceptable for purposes of
Section 3.19(c) hereof, over (ii) the amount of any obligation(s) secured
by any liens on such Mortgaged Property or REO Property, as applicable,
that are prior to the lien of the Required Appraisal Loan, and (y) any
Escrow Payments, Reserve Funds and/or Letters of Credit held by the Master
Servicer or the Special Servicer with respect to such Mortgage Loan, the
related Mortgaged Property or any related REO Property (exclusive of any
such Escrow Payments and Reserve Funds, the application of which was
assumed in determining the Appraised Value of the related Mortgaged
Property or REO Property, as applicable, referred to in clause (2)(x)(i) of
this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event occurs
with respect to any Mortgage Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(c), with
respect to the related Mortgaged Property during the 12-month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property, and (iii) no new
Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(c), within 60 days after such Appraisal Trigger Event, then (x) until such
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(c), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Loan, and (y) upon receipt or performance, as
applicable in accordance with Section 3.19(c), of such Appraisal by the Special
Servicer, the Appraisal Reduction Amount for such Required Appraisal Loan will
be recalculated in accordance with the preceding sentence of this definition.
"Appraisal Trigger Event" shall mean, with respect to any Mortgage Loan,
any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan;
(ii) the Borrower under such Mortgage Loan becomes the subject of
bankruptcy, insolvency or similar proceedings;
(iii) any Monthly Payment with respect to such Mortgage Loan remains
unpaid for 60 days past the Due Date for such payment;
(iv) a receiver is appointed with respect to the related Mortgaged
Property; or
(v) the related Mortgaged Property becomes an REO Property.
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"Appraised Value" shall mean, with respect to each Mortgaged Property or
REO Property, the appraised value thereof (as is) based upon the most recent
Appraisal obtained or conducted, as appropriate, pursuant to this Agreement;
provided, however, that, for purposes of this Agreement, no party hereto may
rely on an Appraisal that is more than 12 months old (it being understood and
agreed that this provision is not intended by itself to impose any separate
obligation on any party hereto to periodically update Appraisals).
"ARD Loan" shall mean a Mortgage Loan that provides for the accrual of
Post-ARD Additional Interest thereon if such Mortgage Loan is not paid in full
on or prior to its Anticipated Repayment Date.
"Assignment of Leases" shall mean, with respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Mortgage Loan, as such assignment may be amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan delinquent in respect of
its Balloon Payment beyond the Determination Date immediately following its
scheduled maturity date (as such date may be extended in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower
or by reason of a modification, waiver or amendment granted or agreed to by
the Special Servicer pursuant to Section 3.20), for that scheduled maturity
date and for each subsequent Due Date as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due with respect to such
Mortgage Loan on such Due Date equal to the amount that would have been due
in respect thereof on such Due Date (other than any Default Interest) if
such Mortgage Loan had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any) in effect immediately prior to, and without
regard to the occurrence of, such maturity date; and
(b) with respect to any REO Mortgage Loan, for any Due Date as of
which the related REO Property remains part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment (or, in the
case of a Balloon Mortgage Loan described in clause (a) of this definition,
the Assumed Monthly Payment) that was due (or deemed due) in respect of the
related Mortgage Loan on the last Due Date prior to its becoming an REO
Mortgage Loan.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date (or,
in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment" shall mean any Monthly Payment payable on a Mortgage Loan
at scheduled maturity that is at least twice as large as the normal Monthly
Payment due on such Mortgage Loan.
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"Bankruptcy Code" shall mean the federal Bankruptcy Code, as amended from
time to time (Title 11 of the United States Code).
"Base Prospectus" shall mean that certain prospectus dated June 20, 2000,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Bond File" shall mean the monthly report containing the information called
for in the form attached hereto as Exhibit E-11, which report shall be in the
form of such Exhibit E-11 or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally (but in any event containing the
information called for in such Exhibit E-11).
"Book-Entry Certificate" shall mean any Certificate registered in the name
of the Depositary or its nominee.
"Book-Entry Subordinate Certificate" shall mean any Subordinate Certificate
that constitutes a Book-Entry Certificate.
"Borrower" shall mean the obligor or obligors on a Mortgage Note, including
any Person that has acquired the related Mortgaged Property and assumed the
obligations of the original obligor under the Mortgage Note.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, the city or cities in which
the Primary Servicing Offices of the Master Servicer and the Special Servicer
are located or the city in which the Corporate Trust Office of the Trustee is
located, are authorized or obligated by law or executive order to remain closed.
"Carryforward Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any Distribution
Date, have the meaning assigned thereto in Section 2.09(g);
(b) with respect to any REMIC II Regular Interest, for any
Distribution Date, have the meaning assigned thereto in Section 2.11(g);
and
(c) with respect to any Class of REMIC III Regular Interest
Certificates, for any Distribution Date, have the meaning assigned thereto
in Section 2.13(g);
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2000-CF1, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
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"Certificate Factor" shall mean, with respect to any Class of REMIC III
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to eight places, the numerator of which is the
related Class Principal Balance or Class Notional Amount, as the case may be,
then outstanding, and the denominator of which is the related Class Principal
Balance or Class Notional Amount, as the case may be, outstanding as of the
Closing Date.
"Certificateholder" or "Holder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that:
(i) neither a Disqualified Organization nor a Non-United States Person shall be
a "Holder" of, or a "Certificateholder" with respect to, a Class R Certificate
for any purpose hereof; and (ii) solely for purposes of giving any consent,
approval, direction or waiver pursuant to this Agreement that specifically
relates to the rights, duties and/or obligations hereunder of any of the
Depositor, the Master Servicer, the Special Servicer, the Tax Administrator, the
Trustee or any Fiscal Agent in its respective capacity as such (other than any
consent, approval or waiver contemplated by any of Sections 3.23, 3.24 and
6.06), any Certificate registered in the name of such party or in the name of
any Affiliate thereof shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver that specifically relates to such party has been
obtained. The Certificate Registrar shall be entitled to request and
conclusively rely upon a certificate of the Depositor, the Master 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
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depositary
and the Depositary Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the Trustee Report
and the CMSA Investor Reporting Package (excluding the Loan Set-Up File).
"Certificate Notional Amount" shall mean, with respect to any Class S
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest, equal to the product of (a) the then
Certificate Factor for the Class S Certificates, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner" shall mean, with respect to any Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depositary or on the books of a Depositary Participant or on the
books of an indirect participating brokerage firm for which a Depositary
Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the then
Certificate Factor for the Class of Principal Balance Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean the register
maintained and the registrar appointed pursuant to Section 5.02.
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"Class" shall mean, collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation and having the same
payment terms. The respective Classes of Certificates are designated in Section
2.08(a). Any reference in any other Section or Subsection of this Agreement to
any Certificate or Certificates preceded by a Class designation shall be to a
Certificate or Certificates of the Class so designated in Section 2.08(a).
"Class A Certificate" shall mean any of the Certificates designated as such
in Section 2.08(b).
"Class B Certificate" shall mean any of the Certificates designated as such
in Section 2.08(c).
"Class E Sub-Account" shall mean a sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and Grantor Trust E, but not an asset of any REMIC Pool.
"Class Notional Amount" shall mean the aggregate hypothetical or notional
amount on which the Class S Certificates (as a collective whole) accrue interest
from time to time, as calculated in accordance with Section 2.13(e).
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates, as
calculated in accordance with Section 2.13(e).
"Class S Portion" shall mean:
(a) when used with respect to the Interest Accrual Amount in respect
of any REMIC II Regular Interest for any Interest Accrual Period, the
portion of such Interest Accrual Amount that is equal to the product of (i)
the entire such Interest Accrual Amount, multiplied by (ii) a fraction (not
less than zero or greater than one), the numerator of which is the excess,
if any, of the REMIC II Remittance Rate with respect to such REMIC II
Regular Interest for such Interest Accrual Period, over the Adjusted REMIC
II Remittance Rate with respect to such REMIC II Regular Interest for such
Interest Accrual Period, and the denominator of which is the REMIC II
Remittance Rate with respect to such REMIC II Regular Interest for such
Interest Accrual Period;
(b) when used with respect to the Current Interest Distribution Amount
in respect of any REMIC II Regular Interest for any Distribution Date, the
portion of such Current Interest Distribution Amount that is equal to (i)
the Class S Portion of the Interest Accrual Amount with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, reduced
(to not less than zero) by (ii) the product of (A) any portion of the Net
Aggregate Prepayment Interest Shortfall for such Distribution Date that is
allocable to such REMIC II Regular Interest in accordance with Section
2.11(g), multiplied by (B) a fraction, the numerator of which is equal to
the Class S Portion of the Interest Accrual Amount with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, and the
denominator of which is equal to the entire Interest Accrual Amount with
respect to such REMIC II Regular Interest for the related Interest Accrual
Period; and
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(c) when used with respect to the Carryforward Interest Distribution
Amount in respect of any REMIC II Regular Interest for any Distribution
Date, the portion of such Carryforward Interest Distribution Amount that is
equal to the excess, if any, of (i) the aggregate of the Class S Portions
of all Current Interest Distribution Amounts with respect to such REMIC II
Regular Interest for all prior Distribution Dates, if any, over (ii) the
aggregate amount of interest deemed distributed to REMIC III with respect
to such REMIC II Regular Interest on all such prior Distribution Dates, if
any, pursuant to the first two sentences of Section 4.01(k).
"Closing Date" shall mean June 27, 2000.
"CMSA" shall mean the Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) Loan Set-Up File, (ii)
Loan Periodic Update File, (iii) Property File, (iv) Bond File, (v)
Financial File and (vi) Collateral Summary File; and
(b) the following eight supplemental reports: (i) Delinquent Loan
Status Report, (ii) Historical Loan Modification Report, (iii) Historical
Liquidation Report, (iv) REO Status Report, (v) Operating Statement
Analysis Report, (vi) Comparative Financial Status Report, (vii) Servicer
Watch List and (viii) NOI Adjustment Worksheet.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collateral Summary File" shall mean the monthly report containing the
information called for in the form attached hereto as Exhibit E-12, which report
shall be in the form of such Exhibit E-12 or such other form for the
presentation of such information as may from time to time be recommended by the
CMSA for commercial mortgage securities transactions generally (but in any event
containing the information called for in such Exhibit E-12).
"Collection Account" shall mean the segregated account or accounts created
and maintained by the Master Servicer, pursuant to Section 3.04(a), in trust for
the Certificateholders, which shall be entitled "Midland Loan Services, Inc. [or
the name of any successor Master Servicer], as Master Servicer, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CF1, Collection Account".
"Collection Period" shall mean, with respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Column" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
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"Commission" shall mean the Securities and Exchange Commission or any
successor thereto.
"Comparative Financial Status Report" shall mean a report substantially in
the form of Exhibit E-3 hereto setting forth, among other things, (a) the
occupancy and Debt Service Coverage Ratio for each Mortgage Loan or related
Mortgaged Property, as applicable, as of the date of the latest financial
information (covering no less than twelve (12) consecutive months) available
immediately preceding the preparation of such report; and (b) the revenue,
expense and Net Operating Income for each of the following three (3) periods (to
the extent such information is in the Master Servicer's or the Special
Servicer's possession): (i) the most current available year-to-date, (ii) each
of the previous two (2) full fiscal years stated separately; and (iii) the "base
year" (representing the original analysis of information used as of the Cut-off
Date). For the purposes of the production by Master Servicer or the Special
Servicer of any such report that is required to state information for any period
prior to the Cut-off Date, the Master Servicer or the Special Servicer, as the
case may be, may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the Mortgage Loan Seller, by
the related Borrower or (x) in the case of such a report produced by the Master
Servicer, by the Special Servicer (if other than the Master Servicer or an
Affiliate thereof) and (y) in the case of such a report produced by the Special
Servicer, by the Master Servicer (if other than the Special Servicer or an
Affiliate thereof).
"Compensating Interest Payment" shall mean, with respect to any
Distribution Date, any payment made by the Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Condemnation Proceeds" shall mean all cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation, exclusive of any portion thereof required to be released to the
related Borrower or any other third-party in accordance with applicable law
and/or the terms and conditions of the related Mortgage Note and Mortgage or any
document to which the related Mortgage Note and Mortgage are subordinate.
"Controlling Class" shall mean, as of any date of determination, the Class
of Principal Balance Certificates, other than the Class D Certificates, with the
lowest payment priority pursuant to Sections 4.01(a) and 4.01(b), that has a
then outstanding Class Principal Balance that is not less than 25% of its
initial Class Principal Balance; provided that, if no Class of Principal Balance
Certificates, exclusive of the Class D Certificates, has a Class Principal
Balance that satisfies the foregoing requirement, then the Controlling Class
shall be the Class of Principal Balance Certificates, other than the Class D
Certificates, with the lowest payment priority pursuant to Sections 4.01(a) and
4.01(b), that has a then outstanding Class Principal Balance greater than zero.
For purposes of this definition, the Class A-1A and Class A-1B Certificates
shall be treated as a single Class and, if appropriate under the terms of this
definition, shall collectively constitute the Controlling Class.
"Controlling Class Certificateholder" shall mean any Holder of Certificates
of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned thereto
in Section 3.23(a).
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"Corporate Trust Office" shall mean 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 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, Attention: Corporate Trust Administration/DLJ Commercial
Mortgage Corp. Series 2000-CF1.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of
(i) a Liquidation Event occurring in respect of such Mortgage Loan or (ii) the
related Mortgaged Property becoming an REO Property).
"Corresponding Class of Principal Balance Certificates" shall mean, with
respect to any REMIC II Regular Interest, the Class of Principal Balance
Certificates that has an alphabetical and, if applicable, numerical Class
designation that is the same as the alphabetical and, if applicable, numerical
designation for such REMIC II Regular Interest.
"Corresponding REMIC II Regular Interest" shall mean, with respect to any
Class of Principal Balance Certificates, the REMIC II Regular Interest that has
an alphabetical and, if applicable, numerical designation that is the same as
the alphabetical and, if applicable, numerical Class designation for such Class
of Principal Balance Certificates.
"Cross-Collateralized Group" shall mean any group of Mortgage Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan, that is,
by its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan.
"Current Interest Distribution Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any Distribution
Date, have the meaning assigned thereto in Section 2.09(g);
(b) with respect to any REMIC II Regular Interest, for any
Distribution Date, have the meaning assigned thereto in Section 2.11(g);
and
(c) with respect to any Class of REMIC III Regular Interest
Certificates, for any Distribution Date, have the meaning assigned thereto
in Section 2.13(g).
"Custodian" shall mean a Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files.
"Cut-off Date" shall mean June 1, 2000.
"Cut-off Date Principal Balance" shall mean, with respect to any Original
Mortgage Loan, the outstanding principal balance of such Mortgage Loan as of the
Cut-off Date, after application of all payments of principal due on or before
such date, whether or not received.
"Debt Service Coverage Ratio" shall mean, with respect to any Mortgage
Loan, as of any date of determination, and without regard to the
cross-collateralization in the case of any Cross-
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Collateralized Mortgage Loan, the ratio of (x) the Net Operating Income (before
payment of any debt service on such Mortgage Loan) generated by the related
Mortgaged Property during the most recent period of not more than 12 months or
less than three-months for which Net Operating Income can be calculated
(annualized if such period is less than 12 months), to (y) twelve times the
amount of the Monthly Payment in effect for such Mortgage Loan as of such date
of determination.
"Default Charges" shall mean Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Mortgage
Loan or REO Mortgage Loan.
"Default Interest" shall mean, with respect to any Mortgage Loan (or
successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Prepayment Premiums or Yield Maintenance Charges, that
represent interest (exclusive, if applicable, of Post-ARD Additional Interest)
in excess of interest accrued on the principal balance of such Mortgage Loan (or
REO Mortgage Loan) at the related Mortgage Rate, such excess interest arising
out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan" shall mean a Specially Serviced Mortgage Loan (i)
that is delinquent in an amount equal to at least two Monthly Payments (not
including the Balloon Payment, if any) or is delinquent 30 days or more in
respect of its Balloon Payment, in either case such delinquency to be determined
without giving effect to any grace period permitted by the related Mortgage or
Mortgage Note and without regard to any acceleration of payments under the
related Mortgage and Mortgage Note, or (ii) as to which the Special Servicer
has, by written notice to the related Borrower, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party" shall have the meaning assigned thereto in Section
7.01(b).
"Definitive Certificate" shall have the meaning assigned thereto in Section
5.03(a).
"Deleted Mortgage Loan" shall mean a Mortgage Loan which is repurchased
from the Trust or replaced with one or more Replacement Mortgage Loans, in
either case as contemplated by Section 2.03.
"Delinquent Loan Status Report" shall mean a report substantially in the
form of Exhibit E-4 hereto, setting forth, among other things, those Mortgage
Loans which, as of the close of business on the Determination Date immediately
preceding the preparation of such report were (i) delinquent 30-59 days, (ii)
delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current but
specially serviced, or (v) in foreclosure but as to which the related Mortgaged
Property has not become an REO Property, and which report shall include such
additional information in respect of each such Mortgage Loan, such as whether
the related Borrower has filed for bankruptcy or similar protection, as set
forth on Exhibit E-4 hereto.
"Depositor" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Depositary" shall mean the Depository Trust Company, or any successor
depositary hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depositary for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depositary shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial
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Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depositary Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.
"Designated Sub-Servicer" shall mean any Sub-Servicer set forth on Exhibit
O hereto and any successor thereto under the related Sub-Servicing Agreement.
"Designated Sub-Servicer Agreement" shall mean any Sub-Servicing Agreement
between a Designated Sub-Servicer and the Master Servicer.
"Determination Date" shall mean, with respect to any calendar month,
commencing in July 2000, the fourth day of such month (or, if such fourth day is
not a Business Day, the immediately preceding Business Day). Each Determination
Date will relate to the Distribution Date in the same calendar month.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers (other than the sale of REO Property pursuant to Section
3.18(d)), the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust other than through an
Independent Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Discount Rate" shall have the meaning assigned thereto in Section 4.01(d).
"Disqualified Organization" shall mean any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Freddie Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Tax Administrator based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Class R Certificate by
such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R 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.
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"Distribution Account" shall mean the segregated account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(b), in trust for
the Certificateholders, which shall be entitled "Norwest Bank Minnesota,
National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 2000-CF1, Distribution Account".
"Distribution Date" shall mean, with respect to any calendar month,
commencing in July 2000, the later of (i) the tenth calendar day of such month
(or, if such tenth calendar day is not a Business Day, the Business Day
immediately following) and (ii) the fourth Business Day following the
Determination Date occurring in such month.
"DLJSC" shall mean Donaldson, Lufkin & Jenrette Securities Corporation or
its successor in interest.
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean with respect to any Mortgage Loan (and any successor
REO Mortgage Loan), the day of the month set forth in the related Mortgage Note
on which each Monthly Payment on such Mortgage Loan is scheduled to be first
due.
"EDGAR" shall mean the Electronic Data Gathering, Analysis, and Retrieval
System of the Commission, the computer system for the receipt, acceptance,
review and dissemination of documents submitted to the Commission in electronic
format.
"Eligible Account" shall mean any of (i) an account maintained with a
federal or state chartered depositary institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which (or of such
institution's parent holding company) are rated no less than "AA" by S&P and, if
then rated thereby, "AA" by Fitch (if the deposits are to be held in the account
for more than 30 days), or the short-term deposit or short-term unsecured debt
obligations of which (or of such institution's parent holding company) are rated
no less than "A-1" by S&P and, if then rated thereby, "F-1+" by Fitch (if the
deposits are to be held in the account for 30 days or less), in any event at any
time funds are on deposit therein, or (ii) a segregated trust account maintained
with a federal or state chartered depositary institution or trust company acting
in its fiduciary capacity, which, in the case of a state chartered depositary
institution or trust company is subject to regulations regarding fiduciary funds
on deposit therein substantially similar to 12 CFR ss. 9.10(b), and which, in
either case, has a combined capital and surplus of at least $50,000,000 and is
subject to supervision or examination by federal or state authority, or (iii) an
account or accounts maintained with PNC Bank, National Association ("PNC") so
long as PNC's long-term unsecured debt rating shall be at least "A" from S&P and
"A" from Fitch, or (iv) any other account that is acceptable to the Rating
Agencies (as evidenced by written confirmation to the Trustee from each Rating
Agency that the use of such account would not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated Certificates).
"Environmental Insurance Policy" shall mean with respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions that is maintained from time to time in
respect of such Mortgaged Property or REO Property, as the case may be, for the
benefit of, among others, the Trustee on behalf of the Certificateholders.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
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"Escrow Payment" shall mean any payment received by the Master Servicer or
the Special Servicer for the account of any Borrower for application toward the
payment of real estate taxes, assessments, insurance premiums (including with
respect to any Environmental Insurance Policy), ground rents (if applicable) and
similar items in respect of the related Mortgaged Property.
"Event of Default" shall have the meaning assigned thereto in Section
7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially Serviced
Mortgage Loan or REO Property, net of (i) interest on any related Advances and
(ii) any related Servicing Advances, over (b) the amount needed to pay off the
Mortgage Loan or related REO Mortgage Loan in full.
"Excess Liquidation Proceeds Account" shall mean the segregated account
created and maintained by the Trustee pursuant to Section 3.04(d) in trust for
the Certificateholders, which shall be entitled "Norwest Bank Minnesota,
National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 2000-CF1".
"Excess Servicing Fees" shall mean, with respect to each Mortgage Loan (and
successor REO Mortgage Loan) other than the Mortgage Loans secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule as Brookfield III
Office Building, Galleria at the Renaissance, Hampton Courts Apartments and Park
Place Shopping Center, that portion of the Master Servicing Fees that accrue at
a per annum rate equal to the Excess Servicing Fee Rate.
"Excess Servicing Fee Rate" shall mean, with respect to each Mortgage Loan
(and successor REO Mortgage Loan) other than the Mortgage Loans secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule as Brookfield III
Office Building, Galleria at the Renaissance, Hampton Courts Apartments and Park
Place Shopping Center, initially 0.03% per annum, provided that such rate shall
be subject to reduction at any time following any resignation of the Master
Servicer pursuant to Section 6.04 (if no successor is appointed in accordance
with the second paragraph of such Section) or any termination of the Master
Servicer pursuant to Section 7.01, to the extent reasonably necessary (in the
sole discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer (which successor may include the Trustee) that meets the
requirements of Section 7.02 and who requires market rate servicing compensation
that accrues at a per annum rate in excess of 0.02% per annum (or, in the case
of a Primary Servicing Fee Loan, in excess of 0.12% per annum).
"Excess Servicing Fee Right" shall mean, with respect to each Mortgage Loan
(and successor REO Mortgage Loan) other than the Mortgage Loans secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule as Brookfield III
Office Building, Galleria at the Renaissance, Hampton Courts Apartments and Park
Place Shopping Center, the right to receive Excess Servicing Fees.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fannie Mae" shall mean the Federal National Mortgage Association or any
successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date" shall mean the final Distribution Date on which
any distributions are to be made on the Certificates as contemplated by Section
9.01.
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"Final Recovery Determination" shall mean a determination made by the
Special Servicer, in its reasonable, good faith judgment, with respect to any
Mortgage Loan or REO Property (other than a Mortgage Loan that is paid in full
and other than a Mortgage Loan or REO Property, as the case may be, that is
repurchased or replaced by Union Capital pursuant to the Union Capital
Agreement, repurchased or replaced by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement or purchased by the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01), that there has been a recovery of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that will ultimately be recoverable.
"Financial File" shall mean the monthly report containing the information
called for in the form attached hereto as Exhibit E-13, which report shall be in
the form of such Exhibit E-13 or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally (but in any event containing the
information called for in such Exhibit E-13).
"Fiscal Agent" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned thereto in Section
8.13.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the other parties hereto, and specific ratings of Fitch, Inc.
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated. References herein to "applicable rating category" (other
than such references to "highest applicable rating category") shall, in the case
of Fitch, be deemed to refer to such applicable rating category of Fitch,
without regard to any plus or minus or other comparable rating qualification.
"Freddie Mac" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"GMACCM" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Grantor Trust" shall mean a grantor trust as defined under Subpart E of
Part 1 of Subchapter J of the Code.
"Grantor Trust E" shall mean the Grantor Trust designated as such in
Section 2.14(a).
"Grantor Trust Pool" shall mean either of Grantor Trust E or Grantor Trust
R.
"Grantor Trust R" shall mean the Grantor Trust designated as such in
Section 2.14(b).
"Ground Lease" shall mean the ground lease pursuant to which any Borrower
holds a leasehold interest in the related Mortgaged Property.
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"Group Environmental Insurance Policy" shall mean the Environmental
Insurance Policy that is maintained from time to time in respect of more than
one Mortgaged Property or REO Property.
"GS&C" shall mean Goldman, Sachs & Co or its successor in interest.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Historical Liquidation Report" shall mean a report 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 received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, (ii)
the amount of Realized Losses occurring during such Collection Period and
historically, and (iii) on an itemized basis, all Advance Interest and other
Additional Trust Fund Expenses paid during such Collection Period, set forth on
a Mortgage Loan-by-Mortgage Loan and REO Property-by-REO Property basis, which
report shall be substantially in the form of, and include such additional
information in respect of each Mortgage Loan and REO Property as to which a
Final Recovery Determination has been made as set forth on, Exhibit E-6 attached
hereto.
"Historical Loan Modification Report" shall mean a report setting forth,
among other things, those Mortgage 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 Collection Period
ending on such Determination Date and (ii) since the Cut-off Date, with a
description of the original and the revised terms thereof, which report shall be
substantially in the form of, and include such additional information in respect
of each such Mortgage Loan as set forth on, Exhibit E-5 attached hereto.
"Independent" shall mean, when used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, any Fiscal Agent, the Controlling Class Representative and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, any Fiscal Agent, the Controlling Class Representative or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, any Fiscal Agent, the Controlling Class Representative or any
Affiliate thereof as an officer, employee, promoter, any underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Tax Administrator,
the Trustee, any Fiscal Agent, the Controlling Class Representative or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Tax Administrator, the
Trustee, such Fiscal Agent, the Controlling Class Representative or any
Affiliate thereof, as the case may be.
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"Independent Contractor" shall mean any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by 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
Tax Administrator or the Trust, delivered to the Trustee and the Tax
Administrator), so long as the Trust does not receive or derive any income from
such Person and provided that the relationship between such Person and the Trust
is at arm's length, all within the meaning of Treasury regulation Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee and the Tax
Administrator of an Opinion of Counsel, which shall be at no expense to the
Trustee, the Tax Administrator or the Trust, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Pool Balance" shall mean the aggregate Cut-off Date Principal
Balance of all the Original Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto in
Section 2.03(b).
"Institutional Accredited Investor" shall mean an "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title insurance
policy, earthquake insurance policy, Environmental Insurance Policy, business
interruption insurance policy or other insurance policy that is maintained from
time to time in respect of such Mortgage Loan (or the related Mortgaged
Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any Insurance Policy,
to the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the related Borrower or any
other third-party in accordance with applicable law and/or the terms and
conditions of the related Mortgage Note and Mortgage or any document to which
the related Mortgage Note and Mortgage are subject.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Amount" shall:
(a) with respect to any REMIC I Regular Interest, for any Interest
Accrual Period, have the meaning assigned thereto in Section 2.09(g);
(b) with respect to any REMIC II Regular Interest, for any Interest
Accrual Period, have the meaning assigned thereto in Section 2.11(g); and
(c) with respect to any Class of REMIC III Regular Interest
Certificates, for any Interest Accrual Period, have the meaning assigned
thereto in Section 2.13(g).
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"Interest Accrual Basis" shall mean the basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest or any Class of REMIC III Regular Interest Certificates, consisting of
one of the following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of REMIC III Regular
Interest Certificates, for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Only Certificates" shall have the meaning assigned thereto in
Section 2.08(h).
"Interest Reserve Account" shall mean the segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for the
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CF1".
"Interest Reserve Amount" shall mean, with respect to each Interest Reserve
Loan and each Distribution Date that occurs during the month of February of 200l
and each year thereafter or during the month of January of 200l and each year
thereafter that is not a leap year, an amount equal to one-day's interest at the
related Mortgage Rate on the Stated Principal Balance of such Interest Reserve
Loan as of the Due Date in the month in which such Distribution Date occurs (but
prior to the application of any amounts due on such Due Date), to the extent
that a Monthly Payment is received in respect thereof for such Due Date on or
before the related Master Servicer Remittance Date or a P&I Advance is made in
respect thereof for such Due Date on the related P&I Advance Date.
"Interest Reserve Loan" shall mean any Actual/360 Mortgage Loan (or
successor REO Mortgage Loan).
"Interested Person" shall mean any party hereto, the Mortgage Loan Seller,
Union Capital, any Certificateholder, or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in Section
3.06(a).
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended.
"IRS" shall mean the Internal Revenue Service or any successor.
"Issue Price" shall mean, with respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections" shall mean: (a) with respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, or on a Due Date coinciding with or preceding the Cut-off
Date, and not previously recovered; and (b) with respect to any REO Mortgage
Loan, all amounts received in connection with the related
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REO Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the predecessor Mortgage Loan or late collections of the principal
and/or interest portions of an Assumed Monthly Payment in respect of such REO
Mortgage Loan due or deemed due on a Due Date in a previous Collection Period
and not previously recovered.
"Latest Possible Maturity Date" shall mean, with respect to any REMIC I
Regular Interest, REMIC II Regular Interest or Class of Principal Balance
Certificates, the date designated as the "latest possible maturity date" thereof
solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii).
"Letter of Credit" shall mean, with respect to any Mortgage Loan, any
third-party letter of credit delivered by or at the direction of the Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event" shall mean: (a) with respect to any Mortgage Loan, any
of the following events--(i) such Mortgage Loan is paid in full, (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan, (iii) such
Mortgage Loan is repurchased or replaced by Union Capital pursuant to the Union
Capital Agreement or by the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase Agreement, in each case as contemplated by Section 2.03, or (iv) such
Mortgage Loan is purchased by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s) pursuant to Section 3.18 or Section 9.01;
and (b) with respect to any REO Property (and the related REO Mortgage Loan),
any of the following events--(i) a Final Recovery Determination is made with
respect to such REO Property; or (ii) such REO Property is purchased by the
Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 3.18 or Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18 (including legal
fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee" shall mean, with respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property that is purchased by the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder(s) pursuant to Section 3.18 or
Section 9.01 or that is repurchased or replaced by Union Capital pursuant to the
Union Capital Agreement or by the Mortgage Loan Seller pursuant to the Mortgage
Loan Purchase Agreement), the fee designated as such and payable to the Special
Servicer pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a
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defaulted Mortgage Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Borrower in accordance with applicable law and/or the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Borrower; (iii) the
purchase of a Defaulted Mortgage Loan by any Controlling Class
Certificateholder(s) pursuant to Section 3.18(b) or by the Master Servicer or
the Special Servicer pursuant to Section 3.18(c) or any other sale thereof
pursuant to Section 3.18(d); (iv) the repurchase of a Mortgage Loan by Union
Capital pursuant to the Union Capital Agreement or by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase Agreement; (v) the substitution of one or
more Replacement Mortgage Loans for a Deleted Mortgage Loan by Union Capital
pursuant to the Union Capital Agreement or by the Mortgage Loan Seller pursuant
to the Mortgage Loan Purchase Agreement (such cash amounts being any
Substitution Shortfall Amounts); or (vi) the purchase of a Mortgage Loan or REO
Property by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01. Except for purposes of Section
3.11(c), "Liquidation Proceeds" shall also include any amounts transferred from
the Special Reserve Account to the Collection Account pursuant to Section
2.03(e).
"Loan Periodic Update File" shall mean the monthly report containing the
information called for in the form attached hereto as Exhibit E-2A, which report
shall be in the form of such Exhibit E-2A or such other form for the
presentation of such information as may from time to time be recommended by the
CMSA for commercial mortgage securities transactions generally (but in any event
containing the information called for in such Exhibit E-2A).
"Loan Set-Up File" shall mean the report containing the information called
for in the form attached hereto as Exhibit E-2C, which report shall be in the
form of such Exhibit E-2C or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally (but in any event containing the
information called for in such Exhibit E-2C).
"Loan-to-Value Ratio" shall mean, with respect to any Mortgage Loan, as of
any date of determination, and without regard to the cross-collateralization in
the case of any Cross-Collateralized Mortgage Loan, a fraction, expressed as a
percentage, the numerator of which is the then current principal amount of such
Mortgage Loan, and the denominator of which is the Appraised Value of the
related Mortgaged Property.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any REMIC I Regular Interest, for any Distribution
Date, the total amount of all Unfunded Principal Balance Reductions, if
any, incurred by (but not reimbursed to) REMIC II with respect to such
REMIC I Regular Interest on all prior Distribution Dates, if any;
(b) with respect to any REMIC II Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC III with
respect to such REMIC II Regular Interest on all prior Distribution Dates,
if any; and
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(c) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders of such
Class of Certificates on all prior Distribution Dates, if any.
"Majority Controlling Class Certificateholder" shall mean, as of any date
of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class or Classes
of Principal Balance Certificates that constitute(s) the Controlling Class as of
such date of determination.
"Master Servicer" shall mean Midland, in its capacity as master servicer
hereunder, or any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount" shall mean, with respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Collection Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including Principal
Prepayments) and interest (including Post-ARD Additional Interest), Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds received after the end
of the related Collection Period, (iii) any Prepayment Premiums and/or Yield
Maintenance Charges received after the end of the related Collection Period,
(iv) any Excess Liquidation Proceeds, (v) any amounts payable or reimbursable to
any Person from the Collection Account pursuant to clauses (ii) through (xix) of
Section 3.05(a), and (vi) any amounts deposited in the Collection Account in
error; provided that the Master Servicer Remittance Amount for the Master
Servicer Remittance Date that occurs in the same calendar month as the
anticipated Final Distribution Date shall be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date" shall mean the Business Day preceding
each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Mortgage Loan and
REO Mortgage Loan, the fee designated as such and payable to the Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each Mortgage Loan
and REO Mortgage Loan (other than a Primary Servicing Fee Loan), 0.05% per annum
and, with respect to each Primary Servicing Fee Loan, 0.15% per annum.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Memorandum" shall mean the final Private Placement Memorandum dated June
__, 2000, relating to certain classes of the Non-Registered Certificates
delivered by the Depositor to DLJSC as of the Closing Date.
"Modified Mortgage Loan" shall mean any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
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(a) materially affects the amount or timing of any payment of
principal or interest due thereon (other than, or in addition to, bringing
Monthly Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the Mortgage on any material portion of
the related Mortgaged Property without a corresponding Principal Prepayment
in an amount, or the delivery of substitute real property collateral with a
fair market value (as is), that is not less than the fair market value (as
is) of the property to be released, as determined by an Appraisal delivered
to the Special Servicer (at the expense of the related Borrower and upon
which the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan as of any
Due Date, the scheduled monthly payment (or, in the case of an ARD Loan after
its Anticipated Repayment Date, the minimum required monthly payment) of
principal and/or interest on such Mortgage Loan, including any Balloon Payment,
that is actually payable by the related Borrower from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy, insolvency or similar proceeding involving the
related Borrower or by reason of a modification, waiver or amendment granted or
agreed to by the Special Servicer pursuant to Section 3.20); provided that the
Monthly Payment due in respect of any ARD Loan after its Anticipated Repayment
Date shall not include Post-ARD Additional Interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust, deed to
secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean, with respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) the original executed Mortgage Note, endorsed (either on the face
thereof or pursuant to a separate allonge) "Pay to the order of Norwest
Bank Minnesota, National Association, as trustee for the registered holders
of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1, without recourse" or in blank, and further
showing a complete, unbroken chain of endorsement from the originator (if
such originator is other than the Mortgage Loan Seller); or alternatively,
if the original executed Mortgage Note has been lost, a lost note affidavit
and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in clause (iv)
of this definition, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of recording
indicated thereon;
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(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
of this definition, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of recording
indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of
Norwest, as trustee for the registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-CF1, in
recordable form;
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in favor of
Norwest, as trustee for the registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-CF1, in
recordable form;
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been modified or
the Mortgage Loan has been assumed, with evidence of recording indicated
thereon if the instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's title insurance
or, if such policy has not yet been issued, a "marked-up" pro forma title
policy or commitment for title insurance;
(viii) filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any assignee prior to
the Trustee (but only to the extent the Mortgage Loan Seller had possession
of such UCC Financing Statements prior to the Closing Date) and, if there
is an effective UCC Financing Statement in favor of the Mortgage Loan
Seller on record with the applicable public office for UCC Financing
Statements, an original UCC-2 or UCC-3, as appropriate, in favor of
Norwest, as trustee for the registered holders of DLJ Commercial Mortgage
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-CF1;
(ix) any environmental indemnity agreement and the original or a copy
of any Environmental Insurance Policy relating solely to such Mortgage
Loan;
(x) any power of attorney, guaranty, property management agreement,
Ground Lease, Ground Lease estoppels, intercreditor agreement, cash
management agreement and lock-box agreement, relating to such Mortgage
Loan;
(xi) any original documents (including any security agreements and any
Letters of Credit and related letter of credit reimbursement agreements)
relating to, evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any intervening assignments thereof;
and
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(xii) any insurance certificates relating to hazard insurance policies
maintained by the Borrower with respect to the related Mortgaged Property
that are in the possession of the Mortgage Loan Seller;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its 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 Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule and any Replacement Mortgage Loans that are from time to
time held in the Trust Fund. As used herein, the term "Mortgage Loan" includes
the related Mortgage Note, Mortgage and other security documents contained in
the related Mortgage File. As used herein, the term "Mortgage Loan" includes a
mortgage loan that has been wholly or partially defeased.
"Mortgage Loan Purchase Agreement" shall have the meaning assigned thereto
in the Preliminary Statement to this Agreement.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans attached
hereto as Exhibit B-1, as such list may be amended from time to time in
accordance with this Agreement. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original and remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the original and
remaining amortization term;
(viii) whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, the other Mortgage Loans contained in the related
Cross-Collateralized Group;
(ix) whether the Mortgage Loan is an ARD Loan and, if so, the
Anticipated Repayment Date;
(x) whether such Mortgage Loan provides for defeasance and, if so, the
period during which defeasance may occur;
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(xi) whether the Mortgage Loan is secured by a fee simple interest in
the Mortgaged Property; by the Borrower's leasehold interest, and a fee
simple interest, in the Mortgaged Property; or solely by a leasehold
interest in the Mortgaged Property;
(xii) the name of the originator of the Mortgage Loan; and
(xiii) the Interest Accrual Basis.
"Mortgage Loan Seller" shall mean Column.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any successor REO
Mortgage Loans, collectively, as of any particular date of determination.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law, as such rate
may be modified in accordance with Section 3.20 or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower. In
the case of each of the ARD Loans, the related Mortgage Rate will be subject to
increase in accordance with the related Mortgage Note if the particular Mortgage
Loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and collectively, as the
context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if
and when the context may require, "Mortgaged Property" shall mean, collectively,
all the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with respect to
any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount of the Compensating Interest Payment
remitted by the Master Servicer pursuant to Section 3.19(a) on the Master
Servicer Remittance Date related to such Distribution Date.
"Net Assumption Application Fee" shall have the meaning assigned thereto in
Section 3.08.
"Net Assumption Fee" shall have the meaning assigned thereto in Section
3.08.
"Net Default Charges" shall mean:
(a) with respect to any Performing Mortgage Loan, the late payment
charges referred to in clause fifth of Section 3.26(b), which are payable
to the Master Servicer as Additional Master Servicing Compensation; and
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(b) with respect to any Specially Serviced Mortgage Loan or REO
Mortgage Loan, the Default Charges referred to in clause fifth of Section
3.26(c), which are payable to the Special Servicer as Additional Special
Servicing Compensation.
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period in
connection with the investment of funds held in such Investment Account for the
benefit of the Master Servicer or the Special Servicer, as applicable, in
accordance with Section 3.06, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds for the benefit of the Master Servicer or the Special Servicer, as
applicable, in accordance with Section 3.06 (other than losses of what would
otherwise have constituted interest or other income earned on such funds).
"Net Investment Loss" shall mean, with respect to any Investment Account
for any Collection Period, the amount by which the aggregate of all losses, if
any, incurred during such Collection Period in connection with the investment of
funds held in such Investment Account for the benefit of the Master Servicer or
the Special Servicer, as applicable, in accordance with Section 3.06 (other than
losses of what would otherwise have constituted interest or other income earned
on such funds), exceeds the aggregate of all interest and other income realized
during such Collection Period in connection with the investment of such funds
for the benefit of the Master Servicer or the Special Servicer, as applicable,
in accordance with Section 3.06; provided that, in the case of any Investment
Account and any particular investment of funds in such Investment Account, Net
Investment Loss shall not include any loss with respect to such investment which
is incurred solely as a result of the insolvency of the federal or state
chartered depositary institution or trust company that holds such Investment
Account, so long as such depositary institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses incurred with
respect thereto.
"Net Operating Income" shall mean, with respect to any Mortgaged Property,
the net operating income derived from such Mortgaged Property for any specified
period, calculated in accordance with Exhibit K.
"New Lease" shall mean any lease of an REO Property entered into at the
direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Certificateholders, if the Special Servicer has the
right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet" shall mean a report prepared by the Special
Servicer with respect to Specially Serviced Mortgaged Loans and REO Mortgage
Loans, and by the Master Servicer with respect to all other Mortgage Loans,
substantially in the form and containing the information described in Exhibit
E-7 attached hereto, presenting the computations made in accordance with the
methodology described in such Exhibit to "normalize" the full year net operating
income and debt service coverage numbers used in the other reports required by
this Agreement.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
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"Nonrecoverable P&I Advance" shall mean as evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Mortgage Loan that, as determined by the Master Servicer or, if applicable,
the Trustee or any Fiscal Agent, in its reasonable, good faith judgment, will
not be ultimately recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in
respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance" shall mean as evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance previously made or to be made in respect of a Mortgage Loan or
REO Property that, as determined by the Master Servicer, the Special Servicer
or, if applicable, the Trustee or any Fiscal Agent, in its reasonable, good
faith judgment, will not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other recovery on
or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate" shall mean any Certificate that has not been
registered under the Securities Act. As of the Closing Date, the Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C, Class D, Class E
and Class R Certificates will constitute Non-Registered Certificates.
"Non-United States Person" shall mean any Person other than a
United States Person.
"Norwest" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer or a Responsible Officer
of the Trustee or any Fiscal Agent, as the case may be.
"Operating Statement Analysis Report" shall have the meaning assigned
thereto in Section 3.12(b).
"Opinion of Counsel" shall mean a written opinion of counsel (which
counsel, in the case of any such opinion of counsel relating to the taxation of
the Trust Fund or any portion thereof or the status of any REMIC Pool as a REMIC
or the status of either Grantor Trust Pool as a Grantor Trust for taxation
purposes, shall be Independent of the Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent and the Tax
Administrator, but which may act as counsel to such Person) acceptable to and
delivered to the addressee(s) thereof and which Opinion of Counsel, except as
provided herein, shall not be at the expense of the Trustee or the Tax
Administrator.
"Original Mortgage Loans" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor thereto.
"Ownership Interest" shall mean, in the case of 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.
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"P&I Advance" shall mean, with respect to any Mortgage Loan or REO Mortgage
Loan, any advance made by the Master Servicer, the Trustee or any Fiscal Agent
pursuant to Section 4.03.
"P&I Advance Date" shall mean the Business Day preceding each Distribution
Date.
"Pass-Through Rate" shall mean the per annum rate at which interest accrues
in respect of any Class of REMIC III Regular Interest Certificates during any
Interest Accrual Period, as set forth in or otherwise calculated in accordance
with Section 2.13(f).
"Percentage Interest" shall mean: (a) with respect to any REMIC III Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Class Principal Balance or Class
Notional Amount, as the case may be, of the relevant Class as of the Closing
Date; and (b) with respect to a Class E or Class R Certificate, the percentage
interest in distributions to be made with respect to the relevant Class, as
stated on the face of such Certificate.
"Performing Mortgage Loan" shall mean any Corrected Mortgage Loan and any
Mortgage Loan as to which a Servicing Transfer Event has not occurred.
"Permitted Investments" shall mean any one or more of the following
obligations or securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided that each such obligation is
backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the party
agreeing to repurchase such obligations are at the time of investment rated
in the highest short-term debt rating category of each of S&P and, if rated
thereby, Fitch (or, in the case of either Rating Agency, have such lower
rating as will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates, as confirmed in writing to the Trustee by such
Rating Agency);
(iii) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof, provided that the
short-term unsecured debt obligations of such bank or trust company are at
the time of investment rated in the highest short-term debt rating category
of each of S&P and, if rated thereby, Fitch (or, in the case of either
Rating Agency, have such lower rating as will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates, as confirmed
in writing to the Trustee by such Rating Agency);
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof (or of any corporation not so
incorporated, provided that the commercial paper is United States Dollar
denominated and amounts
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payable thereunder are not subject to any withholding imposed by any
non-United States jurisdiction), provided that such commercial paper is
rated in the highest short-term debt rating category of each of S&P and, if
rated thereby, Fitch (or, in the case of either Rating Agency, has such
lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates, as confirmed in writing to the Trustee by
such Rating Agency);
(v) units of money market funds which maintain a constant net asset
value, provided that such units of money market funds are rated in the
highest applicable rating category of each of S&P and, if rated thereby,
Fitch (or, in the case of either Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates, as confirmed in writing to the Trustee by such Rating
Agency); or
(vi) any other obligation or security that is acceptable to the Rating
Agencies and will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates (as confirmed in writing to the Trustee by each
Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have a "r" highlighter or other comparable qualifier attached to
its rating; provided, further, that each investment described hereunder must
have (X) a predetermined fixed amount of principal due at maturity (that cannot
vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than 30 days and (Z) except in the case of a
Permitted Investment described in clause (v) above, a fixed interest rate or an
interest rate that is tied to a single interest rate index plus a single fixed
spread; and provided, further, that each investment described hereunder must be
a "cash flow investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee" shall mean any Transferee of a Class R Certificate
other than either a Disqualified Organization or a Non-United States Person;
provided, however, that if a Transferee is classified as a partnership under the
Code, such Transferee shall only be a Permitted Transferee if all of its
beneficial owners are United States Persons and the governing documents of the
Transferee prohibit a transfer of any interest in the Transferee to any
Non-United States Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of Part II of the Fannie Mae
Multifamily Guide, as amended from time to time.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
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"Plurality Class R Certificateholder" shall mean, as to any taxable year of
any REMIC Pool, the Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates.
"Post-ARD Additional Interest" shall mean, with respect to any ARD Loan
after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Loan at the Post-ARD Additional Interest Rate (the payment
of which interest shall, under the terms of such Mortgage Loan, be deferred
until the principal balance of such Mortgage Loan has been paid in full),
together with all interest, if any, accrued at the related Mortgage Rate on such
deferred interest.
"Post-ARD Additional Interest Rate" shall mean, with respect to any ARD
Loan after its Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption" shall mean, for purposes of determining the accrual
of original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests, the REMIC II Regular Interests and the
Certificates for federal income tax purposes, the assumptions that each ARD Loan
is paid in its entirety on its Anticipated Prepayment Date and that no Mortgage
Loan is otherwise voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made after its Due
Date in any Collection Period, any payment of interest (net of related Master
Servicing Fees and, further, net of any portion of such interest that represents
Default Interest or Post-ARD Additional Interest) actually collected from the
related Borrower and intended to cover the period from and after such Due Date
to, but not including, the date of prepayment (exclusive, however, of any
related Prepayment Premium or Yield Maintenance Charge that may have been
collected).
"Prepayment Interest Shortfall" shall mean, with respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made prior to
its Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Borrower (without regard to any Prepayment Premium or
Yield Maintenance Charge that may have been collected), that would have accrued
on the amount of such Principal Prepayment during the period from the date of
prepayment to, but not including, such Due Date (less the amount of related
Master Servicing Fees and, if applicable, exclusive of Default Interest and
Post-ARD Additional Interest).
"Prepayment Premium" shall mean, with respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a Borrower
in connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan or any successor REO Mortgage Loan, to the extent
such premium, penalty or fee is calculated as a percentage of the principal
amount being prepaid or as a specified amount.
"Primary Servicing Fee" shall mean, with respect to each Primary Servicing
Fee Loan, the monthly fee calculated at 0.10% per annum, payable to the related
Sub-Servicer by the Master Servicer from the Master Servicing Fee.
"Primary Servicing Fee Loans" shall mean, the Mortgage Loans secured by
(and any successor REO Mortgage Loans relating to) those Mortgaged Properties
identified on the Mortgage Loan Schedule as Aztec Square Shopping Center and The
Dyncorp Building.
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"Primary Servicing Office" shall mean the office of the Master Servicer or
the Special Servicer, as the context may require, that is primarily responsible
for such party's servicing obligations hereunder.
"Prime Rate" shall mean the "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Trustee, in its sole discretion, shall select an equivalent publication that
publishes such "prime rate"; and if such "prime rate" is no longer generally
published or is limited, regulated or administered by a governmental or quasi-
governmental body, then the Trustee shall select a comparable interest rate
index. In either case, such selection shall be made by the Trustee in its sole
discretion and the Trustee shall notify the Master Servicer and the Special
Servicer in writing of its selection.
"Principal Balance Certificate" shall mean any of the Certificates
designated as such in Section 2.08(f).
"Principal Distribution Amount" shall mean:
(a) with respect to any REMIC I Regular Interest for any Distribution
Date, an amount equal to that portion, if any, of the Total Principal
Distribution Amount for such Distribution Date that is attributable to each
and every Mortgage Loan and/or REO Mortgage Loan, as the case may be, that
relates to such REMIC I Regular Interest; and
(b) with respect to any Class of REMIC III Regular Interest
Certificates (and, accordingly, with respect to that Class's Corresponding
REMIC II Regular Interest) for any Distribution Date, an amount equal to
that portion, if any, of the Total Principal Distribution Amount for such
Distribution Date that is allocable to such Class of Certificates as
provided below in this definition.
For purposes of the foregoing, for so long as the Class A-1A and/or Class
A-1B Certificates remain outstanding, the Total Principal Distribution Amount
for each Distribution Date shall be allocated to the Class A-1A and A-1B
Certificates, up to the lesser of (i) the aggregate of the Class Principal
Balances of the Class A-1A and A-1B Certificates outstanding immediately prior
to such Distribution Date and (ii) the entire such Total Principal Distribution
Amount. The portion of the Total Principal Distribution Amount for each
Distribution Date that is so allocable to the Class A-1A and A-1B Certificates
shall, in turn, be allocated as between those two Classes of Certificates as
follows: (i) prior to the Senior Principal Distribution Cross-Over Date (or, if
there is no Senior Principal Distribution Cross-Over Date, prior to the Final
Distribution Date), first, to the Class A-1A Certificates, up to the Class
Principal Balance thereof outstanding immediately prior to the subject
Distribution Date, and then, to the Class A-1B Certificates; and (ii) on and
after the Senior Principal Distribution Cross-Over Date (and, in any event, on
the Final Distribution Date), to the Class A-1A Certificates and the Class A-1B
Certificates on a pro rata basis in accordance with the respective Class
Principal Balances thereof outstanding immediately prior to the subject
Distribution Date. After the Class Principal Balances of the Class A-1A and A-1B
Certificates have been reduced to zero, the Total Principal Distribution Amount
for each Distribution Date (net of any portion thereof that may have been
allocated to the Class A-1A and A-1B Certificates in retirement thereof pursuant
to the prior two sentences) shall be allocated among the respective Classes of
the Subordinate Principal Balance Certificates, sequentially in the following
order and, in the case of each such Class of Subordinate Principal Balance
Certificates,
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up to the lesser of (i) the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date and (ii)
the remaining unallocated portion of the Total Principal Distribution Amount for
such Distribution Date: first, to the Class A-2 Certificates; second, to the
Class A-3 Certificates; third, to the Class A-4 Certificates; fourth, to the
Class B-1 Certificates; fifth, to the Class B-2 Certificates; sixth, to the
Class B-3 Certificates; seventh, to the Class B-4 Certificates; eighth, to the
Class B-5 Certificates; ninth, to the Class B-6 Certificates; tenth, to the
Class B-7 Certificates; eleventh, to the Class B-8 Certificates; twelfth, to the
Class C Certificates; and thirteenth, to the Class D Certificates.
"Principal Prepayment" shall mean any voluntary payment of principal made
by the Borrower on a Mortgage Loan that is received in advance of its scheduled
Due Date, that is not accompanied by an amount of interest (without regard to
any Prepayment Premium, Yield Maintenance Charge and/or Post-ARD Additional
Interest that may have been collected) representing scheduled interest due on
any date or dates in any month or months subsequent to the month of prepayment.
"Property File" shall mean the monthly report containing the information
called for in the form attached hereto as Exhibit E-2B, which report shall be in
the form of such Exhibit E-2B or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally (but in any event containing the
information called for in such Exhibit E-2B).
"Proposed Plan" shall have the meaning assigned thereto in Section 3.17(a).
"Prospectus" shall mean the Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement" shall mean that certain prospectus supplement dated
June 20, 2000, relating to the Registered Certificates, that is a supplement to
the Base Prospectus.
"Purchase Price" shall mean, with respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Mortgage Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Mortgage Loan) at the related Mortgage Rate (exclusive of any
portion of such interest that represents Post-ARD Additional Interest) to, but
not including, the Due Date occurring in the Collection Period during which the
applicable purchase or repurchase occurs, (c) all related unreimbursed Servicing
Advances, (d) all accrued and unpaid Advance Interest with respect to any
related Advances, and (e) solely in the case of a repurchase or substitution by
Union Capital pursuant to the Union Capital Agreement or by the Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement, (i) all related Special
Servicing Fees and other related Additional Trust Fund Expenses, whether paid or
then owning, and (ii) to the extent not otherwise included in the amount
described in clause (c) of this definition, any costs and expenses incurred by
the Master Servicer, the Special Servicer or the Trustee (on behalf of the
Trust) in enforcing the obligation of such Person to repurchase or replace such
Mortgage Loan.
"Qualified Appraiser" shall mean, in connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer" shall mean a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
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"Qualified Insurer" shall mean an insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan" shall mean, in connection with the
replacement of a Deleted Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a fixed rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has the
same Due Date as, and a grace period for delinquent Monthly Payments that is no
longer than, the Due Date and grace period, respectively, of the Deleted
Mortgage Loan; (iv) is accruing interest on the same Interest Accrual Basis as
the Deleted Mortgage Loan; (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Deleted
Mortgage Loan and, in any event, has a Stated Maturity Date not later than two
years prior to the Rated Final Distribution Date; (vi) has a then current
Loan-to-Value Ratio not higher than, and a then current Debt Service Coverage
Ratio not lower than, the Loan-to-Value Ratio and Debt Service Coverage Ratio,
respectively, of the Deleted Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Deleted Mortgage Loan, (viii)
will comply (except in a manner that would not be adverse to the interests of
the Certificateholders (as a collective whole) in or with respect to such
mortgage loan), as of the date of substitution, with all of the representations
relating to the Deleted Mortgage Loan set forth in or made pursuant to the
Mortgage Loan Purchase Agreement and, in the case of a Union Capital Mortgage
Loan, the Union Capital Agreement; (ix) has a Phase I Environmental Assessment
relating to the related Mortgaged Property in its Servicing File, which Phase I
Environmental Assessment will evidence that there is no material adverse
environmental condition or circumstance at the related Mortgaged Property for
which further remedial action may be required under applicable law; and (x)
constitutes a "qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the Code; provided, however, that if more than one mortgage loan
is to be substituted for any Deleted Mortgage Loan, then all such proposed
Replacement Mortgage Loans shall, in the aggregate, satisfy the requirement
specified in clause (i) of this definition and each such proposed Replacement
Mortgage Loan shall, individually, satisfy each of the requirements specified in
clauses (ii) through (x) of this definition; and provided, further, that no
mortgage loan shall be substituted for a Deleted Mortgage Loan unless (x) such
prospective Replacement Mortgage Loan shall be acceptable to the Controlling
Class Representative (or, if there is no Controlling Class Representative then
serving, to the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class), in its (or their) sole discretion,
and (y) each Rating Agency shall have confirmed in writing to the Trustee that
such substitution will not in and of itself result in an Adverse Rating Event
with respect to any Class of Rated Certificates (such written confirmation to be
obtained by the party (i.e., the Mortgage Loan Seller or Union Capital)
effecting the substitution). It is understood and agreed that the Controlling
Class Representative (or, if no Controlling Class Representative is then
serving, the Holders of Certificates representing a majority of the Voting
Rights assigned to the Controlling Class) could find a prospective Replacement
Mortgage Loan unacceptable for any reason or no reason whatsoever.
"Rated Certificate" shall mean any of the Certificates to which a rating
has been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date" shall mean the Distribution Date in June
2033.
"Rating Agency" shall mean each of S&P and Fitch.
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"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to which a Final
Recovery Determination has been made, or with respect to any successor REO
Mortgage Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a)
the unpaid principal balance of such Mortgage Loan or REO Mortgage Loan, as
the case may be, as of the commencement of the Collection Period in which
the Final Recovery Determination was made, plus (b) without taking into
account the amount described in subclause (1)(c) of this definition, all
unpaid interest accrued in respect of such Mortgage Loan or REO Mortgage
Loan, as the case may be, to but not including the related Due Date in the
Collection Period in which the Final Recovery Determination was made
(exclusive, however, of any portion of such unpaid interest that
constitutes Default Interest or, in the case of an ARD Loan after its
Anticipated Repayment Date, Post-ARD Additional Interest), minus (c) all
payments and proceeds, if any, received in respect of such Mortgage Loan or
REO Mortgage Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made (net of any related
Servicing Advances reimbursed therefrom and any related Liquidation
Expenses paid therefrom);
(2) with respect to each defaulted Mortgage Loan as to which any
portion of the principal or past due interest payable thereunder was
canceled in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or a modification, waiver or amendment of
such Mortgage Loan granted or agreed to by the Master Servicer or the
Special Servicer pursuant to Section 3.20, the amount of such principal or
past due interest (other than any Default Interest and, in the case of an
ARD Loan after its Anticipated Repayment Date, Post-ARD Additional
Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for
any period in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer
or the Special Servicer pursuant to Section 3.20, the amount of any
consequent reduction in the interest portion of each successive Monthly
Payment due thereon (each such Realized Loss to be deemed to have been
incurred on the Due Date for each affected Monthly Payment).
"Record Date" shall mean, with respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Reserve Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer, pursuant to Section
2.01(e), in trust for the Certificateholders, which shall be entitled "Midland
Loan Services, Inc. [or the name of any successor Master Servicer], as Master
Servicer, in trust for the registered holders of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2000-CF1, Recording/Filing
Reserve Account".
"Recording/Filing Reserve Funds" shall have the meaning assigned thereto in
Section 2.01(e).
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"Recording/Title Policy Credit" shall mean, with respect to any Mortgage
Loan as to which there exists a Recording/Title Policy Omission as of December
27, 2001, a letter of credit in the amount of 20% of the then outstanding
principal amount of such Mortgage Loan, which letter of credit (or,
alternatively, a Recording/Title Policy Reserve) must be delivered by the
Mortgage Loan Seller to the Master Servicer, pursuant to the Mortgage Loan
Purchase Agreement.
"Recording/Title Policy Omission" shall mean, with respect to any Mortgage
Loan, the occurrence of any of the following on December 27, 2001 which remains
uncured or unremedied: (a) the Mortgage File for such Mortgage Loan does not
contain each recorded or, in the case of a Mortgaged Property operated as a
hospitality property, filed document (or a copy thereof) as required by clause
(ii), clause (iii), clause (iv), clause (v) or, in the case of a Mortgaged
Property operated as a hospitality property, clause (viii) of the definition of
"Mortgage File" and Section 2.01(e) because an original of such document (i) was
not delivered by or on behalf of the Mortgage Loan Seller either as a recorded
document or in proper form for recording in the appropriate public recording
office, (ii) was lost, (iii) was returned unrecorded as a result of an actual or
purported defect therein or (iv) has not been returned from the applicable
public recording or filing office; or (b) the Mortgage File for such Mortgage
Loan does not contain an original or copy of the related lender's title
insurance policy for any reason; provided that such omission, in the case of
either clause (a) or (b), would, in the reasonable, good faith judgment of the
Master Servicer, materially and adversely affect (x) the ability of the Trustee,
the Master Servicer or the Special Servicer to enforce on a prompt basis the
liens and security interests securing such Mortgage Loan and the priority
thereof or (y) the value of such Mortgage Loan as of the time of determination.
"Recording/Title Policy Reserve" shall mean, with respect to any Mortgage
Loan as to which there exists a Recording/Title Policy Omission as of December
27, 2001, a cash deposit in the amount of 20% of the then outstanding principal
amount of such Mortgage Loan, which cash deposit (or, alternatively, a
Recording/Title Policy Credit) must be delivered by the Mortgage Loan Seller to
the Master Servicer, pursuant to the Mortgage Loan Purchase Agreement.
"Registered Certificate" shall mean any Certificate that has been
registered under the Securities Act. As of the Closing Date, the Class S, Class
A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2
Certificates constitute Registered Certificates.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of Advance Interest, which rate per annum is equal to the Prime Rate.
"REMIC" shall mean a "real estate mortgage investment conduit" as defined
in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets designated as such in
Section 2.09(a)
"REMIC I Regular Interest" shall mean any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in each such
case, designated as a "regular interest" in REMIC I. The REMIC I Regular
Interests have the designations and terms provided for in Section 2.09.
"REMIC I Remittance Rate" shall mean the per annum rate at which interest
accrues in respect of any REMIC I Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.09(f).
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"REMIC I Residual Interest" shall mean the sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC I
issued pursuant to this Agreement.
"REMIC II" shall mean the segregated pool of assets designated as such in
Section 2.11(a).
"REMIC II Regular Interest" shall mean any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" in REMIC II. The REMIC II Regular
Interests have the designations and terms provided for in Section 2.11.
"REMIC II Remittance Rate" shall mean the per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.11(f).
"REMIC II Residual Interest" shall mean the sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC II
issued pursuant to this Agreement.
"REMIC III" shall mean the segregated pool of assets designated as such in
Section 2.13(a).
"REMIC III Regular Interest Certificate" shall mean any of the Certificates
designated as such in Section 2.08(i).
"REMIC III Residual Interest" shall mean the sole uncertificated "residual
interest", within the meaning of Section 860G(a)(2) of the Code, in REMIC III
issued pursuant to this Agreement.
"REMIC Pool" shall mean any of REMIC I, REMIC II or REMIC III.
"REMIC Provisions" shall mean the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC Sub-Account" shall mean a sub-account of the Distribution Account
established pursuant to Section 3.04(b), which sub-account shall constitute an
asset of the Trust Fund and REMIC I, but not an asset of either Grantor Trust
Pool.
"Rents from Real Property" shall mean, with respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean a segregated custodial account or accounts created
and maintained by the Special Servicer, pursuant to Section 3.16(b), on behalf
of the Trustee in trust for the Certificateholders, which shall be entitled
"GMAC Commercial Mortgage Corporation [or the name of any successor Special
Servicer], as Special Servicer, in trust for the registered holders of DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-CF1, REO Account".
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"REO Acquisition" shall mean the acquisition of any REO Property pursuant
to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any REO
Property pursuant to Section 3.18(d).
"REO Extension" shall have the meaning assigned thereto in Section 3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for purposes hereof
to be outstanding with respect to each REO Property. Each REO Mortgage Loan
shall be deemed to provide for monthly payments of principal and/or interest
equal to its Assumed Monthly Payment and otherwise to have the same terms and
conditions as its predecessor Mortgage Loan (such terms and conditions to be
applied without regard to the default on such predecessor Mortgage Loan or the
Trust's acquisition of the subject REO Property). Each REO Mortgage Loan shall
be deemed to have an initial unpaid principal balance and Stated Principal
Balance equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than any Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Mortgage Loan. In addition, all amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including any unpaid or unreimbursed Servicing Fees and Advances
(together with any related unpaid Advance Interest), shall continue to be
payable or reimbursable in the same priority and manner pursuant to Section
3.05(a) to the Master Servicer, the Special Servicer, the Trustee or any Fiscal
Agent, as the case may be, in respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired by the Special
Servicer on behalf of the Trust for the benefit of the Certificateholders
through foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds derived
from the ownership, operation or leasing of any REO Property.
"REO Status Report" shall mean a report substantially in the form and
containing the information described in Exhibit E-9 attached hereto, including,
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, among other things, (i) the Acquisition Date of such
REO Property, (ii) the amount of income collected with respect to such REO
Property (net of related expenses) and other amounts, if any, received on such
REO Property during the related Collection Period and (iii) the value of the REO
Property based on the most recent appraisal or other valuation thereof available
to the Special Servicer as of such Determination Date (including any valuation
prepared internally by the Special Servicer).
"REO Tax" shall have the meaning assigned thereto in Section 3.17(a).
"Replacement Mortgage Loan" shall mean any mortgage loan that is
substituted by the Mortgage Loan Seller or Union Capital for a Deleted Mortgage
Loan as contemplated by Section 2.03.
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"Request for Release" shall mean a request signed by a Servicing Officer
of, as applicable, the Master Servicer in the form of Exhibit D-1 attached
hereto or the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan" shall mean any Mortgage Loan (and any successor
REO Mortgage Loan) as to which an Appraisal Trigger Event has occurred; provided
that a Mortgage Loan shall cease to be a Required Appraisal Loan if and when,
following the occurrence of the most recent Appraisal Trigger Event with respect
thereto, such Mortgage Loan has become a Corrected Mortgage Loan and no other
Servicing Transfer Event or Appraisal Trigger Event has occurred with respect
thereto during the preceding three months.
"Reserve Account" shall mean any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on behalf of the
mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect to any
Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(b) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is and remains a Performing Mortgage Loan
throughout the applicable Initial Resolution Period, the period commencing
at the end of the applicable Initial Resolution Period and ending on, and
including, the earlier of (i) the 90th day following the end of such
Initial Resolution Period and (ii) the 45th day following the Mortgage Loan
Seller's receipt of written notice from the Master Servicer or the Special
Servicer of the occurrence of any Servicing Transfer Event with respect to
such Mortgage Loan subsequent to the end of such Initial Resolution Period;
(c) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to which a
Servicing Transfer Event occurs during such Initial Resolution Period, the
period commencing at the end of the applicable Initial Resolution Period
and ending on, and including, the 90th day following the earlier of (i) the
end of such Initial Resolution Period and (ii) the Mortgage Loan Seller's
receipt of written notice from the Master Servicer or the Special Servicer
of the occurrence of such Servicing Transfer Event; and
(d) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan as
of the
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commencement of the applicable Initial Resolution Period, zero (-0-) days,
provided that , if the Mortgage Loan Seller did not receive written notice
from the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event will be deemed to have occurred
during such Initial Resolution Period and clause (c) of this definition
will be deemed to apply.
The Mortgage Loan Seller shall designate in the Mortgage Loan Purchase
Agreement specific officers to receive the notices contemplated above in this
definition, and the Mortgage Loan Seller shall be deemed not to have received
any such notice until delivered to or received by one of its designated officers
in accordance with the Mortgage Loan Purchase Agreement.
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, the President, the Treasurer, the Secretary, any Vice President, any
Assistant Vice President, any Trust Officer, any Assistant Secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b) when used with
respect to any Fiscal Agent or any Certificate Registrar (other than the
Trustee), any officer or assistant officer thereof.
"Responsible Party" shall mean: (a) in the case of a Material Document
Defect, the Mortgage Loan Seller; and (b) in the case of a Material Breach, the
Mortgage Loan Seller or Union Capital, as applicable, which ever made the
representation or warranty as to which such Material Breach exists.
"Restricted Servicer Reports" shall mean each of the Servicer Watch List,
the Operating Statement Analysis Report, the NOI Adjustment Worksheet, Financial
File and the Comparative Financial Status Report.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the other parties hereto, and specific ratings of Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
References herein to "applicable rating category" (other than such references to
"highest applicable rating category") shall, in the case of S&P, be deemed to
refer to such applicable rating category of S&P, without regard to any plus or
minus or other comparable rating qualification.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Certificate" shall mean any of the Certificates designated as such
in Section 2.08(d).
"Senior Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of which the aggregate of the Class Principal
Balances of the Class A-1A Certificates and the Class A-1B Certificates
outstanding immediately prior thereto equals or exceeds the sum of (a) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, plus (b) the lesser of (i) the
Total Principal Distribution Amount for such Distribution Date and (ii) the
portion of the Standard Available Distribution Amount for such Distribution Date
that
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will remain after all distributions of interest to be made on the Senior
Certificates on such Distribution Date pursuant to Section 4.01(a) have been so
made.
"Servicer Watch List" shall mean, for any Determination Date, a report
(substantially in the form of Exhibit E-10) of all Mortgage Loans that
constitute one of the following types of Mortgage Loans as of such Determination
Date: (i) a Mortgage Loan that has a then current Debt Service Coverage Ratio
that is less than 1.10x; (ii) a Mortgage Loan as to which any required
inspection of the related Mortgaged Property conducted by the Master Servicer
indicates a problem that the Master Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property; (iii) a Mortgage Loan as to which the Master Servicer has
actual knowledge of material damage or waste at the related Mortgaged Property;
(iv) a Mortgage Loan as to which it has come to the Master Servicer's attention
in the performance of its duties under this Agreement (without any expansion of
such duties by reason thereof) that any tenant occupying 25% or more of the
space in the related Mortgaged Property (A) has vacated such space (without
being replaced by a comparable tenant and lease) or (B) has declared bankruptcy;
(v) a Mortgage Loan that is at least 30 days delinquent in payment; and (vi) a
Mortgage Loan that is within 60 days of maturity. No later than each
Determination Date, the Special Servicer shall provide the Master Servicer with
any information in its possession regarding the Specially Serviced Mortgage
Loans necessary for preparation of the Servicer Watch List that is not in the
possession of the Master Servicer.
"Servicing Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and necessary
"out-of-pocket" costs and expenses paid or to be paid, as the context requires,
out of its own funds, by the Master Servicer or the Special Servicer (or, if
applicable, the Trustee or any Fiscal Agent) in connection with the servicing of
a Mortgage Loan after a default, delinquency or other unanticipated event, or in
connection with the administration of any REO Property, including (1) any such
costs and expenses associated with (a) compliance with the obligations of the
Master Servicer and/or the Special Servicer set forth in Sections 2.03, 3.03(c)
and 3.09, (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "force placed"
insurance policy purchased by the Master Servicer or the Special Servicer to the
extent such cost is allocable to a particular Mortgaged Property that the Master
Servicer or the Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds in respect of any such Mortgage Loan or any REO Property,
(d) any enforcement or judicial proceedings with respect to any such Mortgage
Loan, including foreclosures and similar proceedings, (e) the operation,
management, maintenance and liquidation of any REO Property, (f) obtaining any
Appraisal required to be obtained hereunder, and (g) UCC filings (to the extent
that the costs thereof are not reimbursed by the related Borrower), (2) the
reasonable and direct out-of-pocket travel expenses incurred by the Special
Servicer in connection with performing inspections pursuant to Section 3.12(a),
(3) the cost of any Opinion of Counsel expressly required to be obtained
hereunder in connection with the servicing of any particular Mortgage Loan, to
the extent that the related Borrower fails to pay the costs thereof, and (4) any
other expenditure which is expressly designated as a Servicing Advance herein;
provided that notwithstanding anything to the contrary, "Servicing Advances"
shall not include (A) allocable overhead of the Master Servicer or the Special
Servicer, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses, (B) costs incurred by either such party or any Affiliate thereof in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this
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Agreement or (C) costs or expenses expressly required under this Agreement to be
borne by the Master Servicer or Special Servicer.
"Servicing Fees" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean any documents (other than documents required to
be part of the related Mortgage File, but including any correspondence file) in
the possession of the Master Servicer or the Special Servicer and relating to
the origination and servicing of any Mortgage Loan or the administration of any
REO Property.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time by the Master Servicer or the Special Servicer, as applicable.
"Servicing Rights Purchase Agreement" shall mean the Servicing Rights
Purchase Agreement dated June 27, 2000, between Midland and Column.
"Servicing Return Date" shall mean, with respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the Master
Servicer and the Special Servicer, subject to applicable law and the express
terms of the relevant Mortgage Loans, to service and administer the Mortgage
Loans and REO Properties for which it is responsible hereunder: (a) with the
same care, skill and diligence as is normal and usual in its general mortgage
servicing and REO property management activities on behalf of third parties or
on behalf of itself, whichever is higher, with respect to mortgage loans and REO
properties that are comparable to those for which it is responsible hereunder;
(b) with a view to the timely collection of all scheduled payments of principal
and interest under the Mortgage Loans, the full collection of all Prepayment
Premiums and Yield Maintenance Charges that may become payable under the
Mortgage Loans and, in the case of the Special Servicer, if a Mortgage Loan
comes into and continues in default and if, in the good faith and reasonable
judgment of the Special Servicer, no satisfactory arrangements can be made for
the collection of the delinquent payments (including payments of Prepayment
Premiums and Yield Maintenance Charges), the maximization of the recovery on
such Mortgage Loan to the Certificateholders (as a collective whole) on a
present value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the related
Mortgage Rate); and (c) without regard to: (i) any known relationship that the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, may have with the related Borrower or
with any other party to this Agreement; (ii) the ownership of any Certificate by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be; (iii) any obligation of the Master
Servicer to make Advances, (iv) any obligation of the Special Servicer to make,
or direct the Master Servicer to make, Servicing Advances; (v) the right of the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, to receive reimbursement of costs, or
the sufficiency of any compensation payable to it, hereunder or with respect to
any particular transaction; or (vi) any ownership, servicing and/or management
by the Master Servicer (or any Affiliate thereof) or the Special Servicer (or
any Affiliate
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thereof), as the case may be, of any other mortgage loans or real property.
"Servicing Transfer Event" shall mean, with respect to any Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as to which
any of the following events has occurred:
(a) the related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related Mortgage Note or the related Mortgage, which failure continues,
or the Master Servicer determines, in its reasonable, good faith judgment,
will continue, unremedied for (i) for 60 days beyond the date on which the
subject payment was due, or (ii) in the case of a defaulted Balloon
Mortgage Loan that is delinquent in respect of its Balloon Payment, but as
to which the related Borrower has delivered a refinancing commitment, for
such longer period, not to exceed 90 days beyond the related maturity date,
during which the refinancing would occur; or
(b) the Master Servicer has determined, in its reasonable, good faith
judgment, that a default in making a Monthly Payment (including a Balloon
Payment) or any other material payment required under the related Mortgage
Note or the related Mortgage(s) is likely to occur within 30 days and
either (i) the related Borrower has requested a material modification of
the related Mortgage Loan (other than a waiver of a "due-on-sale" clause
permitted under Section 3.08) or (ii) such default is likely to remain
unremedied for at least the period contemplated by clause (a) of this
definition; or
(c) the Master Servicer has determined, in its reasonable, good faith
judgment, that a default, other than as described in clause (a) or (b)
above, has occurred that may materially impair the value of the related
Mortgaged Property as security for the Mortgage Loan, which default has
continued unremedied for the applicable cure period under the terms of the
Mortgage Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Borrower under any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding, or for the winding-up or liquidation
of its affairs, shall have been entered against the related Borrower and
such decree or order shall
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have remained in force undischarged or unstayed for a period of 60 days; or
(e) the related Borrower shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding of or
relating to such Borrower or of or relating to all or substantially all of
its property; or
(f) the related Borrower shall have admitted in writing its inability
to pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property or Properties;
provided, however, that a Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property or, so long
as at such time no circumstance identified in clauses (a) through (g) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in clause (a) above,
if and when the related Borrower has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar
proceeding involving the related Borrower or by reason of a modification,
waiver or amendment granted or agreed to by the Master Servicer or the
Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (b), (d),
(e) and (f) above, if and when such circumstances cease to exist in the
reasonable, good faith judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (c) above,
if and when such default is cured in the reasonable, good faith judgment of
the Special Servicer; and
(z) with respect to the circumstances described in clause (g) above,
if and when such proceedings are terminated.
"Special Reserve Account" shall mean a segregated custodial account or
accounts created and maintained by the Master Servicer, pursuant to Section
2.03(e), on behalf of the Trustee in trust for the Certificateholders and the
Mortgage Loan Seller, which shall be entitled "Midland Loan Services, Inc. [or
the name of any successor Master Servicer], as Master Servicer, in trust for the
registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CF1, and Column Financial, Inc., Special
Reserve Account".
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"Special Servicer" shall mean GMACCM in its capacity as special servicer
hereunder, or any successor Special Servicer appointed as herein provided.
"Special Servicing Fee" shall mean, with respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan, the fee designated as such and payable
to the Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"SSBI" shall mean Salomon Smith Barney Inc. or its successors in interest.
"Standard Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to (a) the sum of (i) all amounts on deposit
in the Distribution Account as of 11:00 a.m., New York City time, on such
Distribution Date, (ii) to the extent not included in the amount described in
clause (a)(i) of this definition, any P&I Advances and/or Compensating Interest
Payments that were made in respect of such Distribution Date, (iii) to the
extent not included in the amount described in clause (a)(i) of this definition,
the aggregate amount transferred (pursuant to Section 3.05(d)) from the Excess
Liquidation Proceeds Account to the Distribution Account in respect of such
Distribution Date and (iv) to the extent not included in the amount described in
clause (a)(i) of this definition, if such Distribution Date occurs during the
month of March of 2001 or any year thereafter, the aggregate of the Interest
Reserve Amounts with respect to the Interest Reserve Loans transferred from the
Interest Reserve Account to the Distribution Account during such month of March
for distribution on such Distribution Date, net of (b) any portion of the
amounts described in clause (a) of this definition that represents one or more
of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any payments of
principal (including Principal Prepayments) and interest, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received after the end of the
related Collection Period, (iii) any Prepayment Premiums, Yield Maintenance
Charges and/or Post-ARD Additional Interest; (iv) any amounts payable or
reimbursable to any Person from the Distribution Account pursuant to clauses
(ii) through (v) of Section 3.05(b), (v) if such Distribution Date occurs during
the month of February of 2001 or any year thereafter or during the month of
January of 2001 or any year thereafter that is not a leap year, the aggregate of
the Interest Reserve Amounts with respect to the Interest Reserve Loans to be
withdrawn (pursuant to Section 3.04(c) and Section 3.05(b)(vi)) from the
Distribution Account and deposited into the Interest Reserve Account during such
month of February or such month of January, as the case may be, and held for
future distribution, and (vi) any amounts deposited in the Distribution Account
in error; provided that the Standard Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(v) of this definition.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 2.09(a) (in the case of REMIC I), Section 2.11(a)
(in the case of REMIC II) or Section 2.13(a) (in the case of REMIC III), as
applicable.
"Stated Maturity Date" shall mean, with respect to any Mortgage Loan, the
Due Date specified in the related Mortgage Note (as in effect on the Closing
Date or, in the case of a Replacement Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a
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modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20 and, in the case of an ARD Loan,
without regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean, with respect to any Mortgage Loan
(and any successor REO Mortgage Loan), a principal balance which (a) initially
shall equal the unpaid principal balance thereof as of the Cut-off Date or, in
the case of any Replacement Mortgage Loan, as of the related date of
substitution, in any event after application of all payments of principal due
thereon on or before such date, whether or not received, and (b) shall be
permanently reduced on each subsequent Distribution Date (to not less than zero)
by (i) that portion, if any, of the Total Principal Distribution Amount for such
Distribution Date attributable to such Mortgage Loan (or successor REO Mortgage
Loan), and (ii) the principal portion of any Realized Loss incurred in respect
of such Mortgage Loan (or successor REO Mortgage Loan) during the related
Collection Period; provided that, if a Liquidation Event occurs in respect of
any Mortgage Loan or REO Property, then the "Stated Principal Balance" of such
Mortgage Loan or of the related REO Mortgage Loan, as the case may be, shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred.
"Subordinate Certificate" shall mean any of the Certificates designated as
such in Section 2.08(e).
"Subordinate Principal Balance Certificate" shall mean any of the
Certificates designated as such in Section 2.08(g).
"Sub-Servicer" shall mean any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount" shall mean, in connection with the
substitution of one or more Replacement Mortgage Loans for any Deleted Mortgage
Loan, the amount, if any, by which the Purchase Price for such Deleted Mortgage
Loan (calculated as if it were to be repurchased, instead of replaced, on the
relevant date of substitution), exceeds the initial Stated Principal Balance or
the initial aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s).
"Tax Administrator" shall mean any tax administrator appointed pursuant to
Section 10.03 (or, in the absence of any such appointee acting in such capacity,
the Trustee).
"Tax Matters Person" shall mean, with respect to any REMIC Pool, the Person
designated as the "tax matters person" of such REMIC Pool in the manner provided
under Treasury regulation section 1.860F-4(d) and temporary Treasury regulation
section 301.6231(a)(7)-1T, which Person shall, pursuant to Section 10.01(b), be
the Plurality Class R Certificateholder.
"Tax Returns" shall mean the federal income tax return on IRS Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holder of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each REMIC Pool due to its classification as a REMIC under
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the REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the IRS under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable state or local tax laws.
"Termination Price" shall have the meaning assigned thereto in Section
9.01.
"Total Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the Final
Distribution Date, an amount equal to the aggregate (without duplication)
of the following--
(i) all payments of principal (including Principal Prepayments)
received on the Mortgage Loans during the related Collection Period,
in each case net of any portion of the particular payment that
represents a Late Collection of principal for which a P&I Advance was
previously made for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the Cut-off
Date or on a Due Date subsequent to the end of the related Collection
Period,
(ii) all scheduled payments of principal due in respect of the
Mortgage Loans for their respective Due Dates occurring during the
related Collection Period that were received (other than as part of a
Principal Prepayment) prior to the related Collection Period,
(iii) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received on any of the Mortgage Loans during the
related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of such Mortgage Loans in
accordance with Section 1.03, in each case net of any portion of such
proceeds that represents a Late Collection of principal due on or
before the Cut-off Date or for which a P&I Advance was previously made
for a prior Distribution Date,
(iv) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and REO Revenues received in respect of any REO Properties
during the related Collection Period that were identified and applied
by the Master Servicer as recoveries of principal of the related REO
Mortgage Loans in accordance with Section 1.03, in each case net of
any portion of such proceeds and/or revenues that represents a Late
Collection of principal due on or before the Cut-off Date or for which
a P&I Advance was previously made for a prior Distribution Date,
(v) the respective principal portions of all P&I Advances made in
respect of the Mortgage Loans and any REO Mortgage Loans with respect
to such Distribution Date; and
(b) with respect to the Final Distribution Date, an amount equal to
the aggregate Stated Principal Balance of the entire Mortgage Pool
outstanding immediately prior to the Final Distribution Date.
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned thereto
in Section 5.02(d).
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"Transferee" shall mean any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Treasury Rate" shall have the meaning assigned thereto in Section 4.01(d).
"Trust" shall mean the trust created hereby.
"Trustee" shall mean Norwest, in its capacity as trustee hereunder, or any
successor trustee appointed as herein provided.
"Trustee Report" shall have the meaning assigned thereto in Section
4.02(a).
"Trustee's Fee" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a).
"Trustee's Fee Rate" shall mean 0.0025% per annum.
"Trust Fund" shall mean, collectively, all of the assets of all the REMIC
Pools and Grantor Trust Pools, together with (a) the Special Reserve Account and
any Recording/Title Policy Reserves and Recording/Title Policy Credits delivered
by the Mortgage Loan Seller to the Master Servicer as contemplated by Section
2.03(e) and (b) the Recording/Filing Reserve Funds and the reserve account in
which they are held by the Master Servicer.
"UCC" shall mean the Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Principal Balance" shall mean the principal balance
outstanding from time to time of any REMIC I Regular Interest (calculated in
accordance with Section 2.09(e) hereof) or any REMIC II Regular Interest
(calculated in accordance with Section 2.11(e) hereof).
"Underwriters" shall mean, collectively, DLJSC, GS&C and SSBI.
"Unfunded Principal Balance Reduction" shall mean any reduction made in the
Class Principal Balance of any Class of Principal Balance Certificates pursuant
to Section 4.04(a), the Uncertificated Principal Balance of any REMIC II Regular
Interest pursuant to Section 4.04(b) or the Uncertificated Principal Balance of
any REMIC I Regular Interest pursuant to Section 4.04(c).
"Union Capital" shall mean Union Capital Investments, LLC or its successor
in interest.
"Union Capital Agreement" shall mean, with respect to each Mortgage Loan
originated by Union Capital, the Seller's Warranty Certificate dated as of June
20, 2000, executed and delivered by Union Capital, the form of which is attached
hereto as Exhibit N.
"Union Capital Mortgage Loan" shall mean any Mortgage Loan originated by
Union Capital.
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"United States Person" shall mean a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
"Unrestricted Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the Bond File, the
Collateral Summary File and Restricted Servicer Reports).
"USAP" shall mean the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional Appraisal
Practices.
"Voting Rights" shall mean the voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Holders of the various Classes of
Principal Balance Certificates in proportion to the respective Class Principal
Balances of such Classes, and 1.0% of the Voting Rights shall be allocated to
the Holders of the Class S Certificates. Voting Rights allocated to a particular
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the respective Percentage Interests evidenced by their respective
Certificates.
"Workout Fee" shall mean, with respect to each Corrected Mortgage Loan, the
fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected Mortgage
Loan, 1.0%.
"Yield Maintenance Certificates" shall mean the Class A-1A, Class A-1B,
Class A-2, Class A-3, Class A-4, Class B-1 and Class B-2 Certificates.
"Yield Maintenance Charge" shall mean, with respect to any Mortgage Loan,
any premium, penalty or fee paid or payable, as the context requires, by a
Borrower in connection with a Principal Prepayment on, or other early collection
of principal of, a Mortgage Loan, other than any Prepayment Premium.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
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(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles as in effect from time to time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby" and
other words of similar import refer to this Agreement as a whole and not to
any particular provision; and
(vi) the terms "include" and "including" shall mean without limitation
by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Cross-Collateralized Group in
the form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds, shall be applied by the Master Servicer among the
Mortgage Loans constituting such Cross-Collateralized Group in accordance with
the express provisions of the related loan documents and, in the absence of such
express provisions, on a pro rata basis in accordance with the respective
amounts then "due and owing" as to each such Mortgage Loan. All amounts
collected in respect of or allocable to any particular Mortgage Loan (whether or
not such Mortgage Loan constitutes part of a Cross-Collateralized Group) in the
form of payments from Borrowers, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage Note
and Mortgage and, in the absence of such express provisions or if and to the
extent that such terms authorize the lender to use its discretion, shall be
applied for purposes of this Agreement: first, as a recovery of any related and
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest on such Mortgage Loan to,
but not including, the date of receipt (or, in the case of a full Monthly
Payment from any Borrower, through the related Due Date), exclusive, however, of
any portion of such accrued and unpaid interest that constitutes Default
Interest or, in the case of an ARD Loan after its Anticipated Repayment Date,
that constitutes Post-ARD Additional Interest; third, as a recovery of principal
of such Mortgage Loan then due and owing, including by reason of acceleration of
the Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, unless a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, unless a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then
required to be held in escrow; sixth, as a recovery of any Prepayment Premium or
Yield Maintenance Charge then due and owing under such Mortgage Loan; seventh,
as a recovery of any Default Charges then due and owing under such Mortgage
Loan; eighth, as a recovery of any
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assumption fees and modification fees then due and owing under such Mortgage
Loan; ninth, as a recovery of any other amounts then due and owing under such
Mortgage Loan other than remaining unpaid principal and, in the case of an ARD
Loan after its Anticipated Repayment Date, other than Post-ARD Additional
Interest; tenth, as a recovery of any remaining principal of such Mortgage Loan
to the extent of its entire remaining unpaid principal balance; and, eleventh,
in the case of an ARD Loan after its Anticipated Repayment Date, as a recovery
of accrued and unpaid Post-ARD Additional Interest on such ARD Loan to but not
including the date of receipt.
(b) Collections in respect of each REO Property (exclusive of amounts to be
applied to the payment of the costs of operating, managing, maintaining and
disposing of such REO Property) shall be treated: first, as a recovery of any
related and unreimbursed Servicing Advances and, if applicable, unpaid
Liquidation Expenses; second, as a recovery of accrued and unpaid interest on
the related REO Mortgage Loan to, but not including, the Due Date in the
Collection Period of receipt, exclusive, however, of any portion of such accrued
and unpaid interest that constitutes Default Interest or, in the case of an REO
Mortgage Loan that relates to an ARD Loan after its Anticipated Repayment Date,
that constitutes Post-ARD Additional Interest; third, as a recovery of principal
of the related REO Mortgage Loan to the extent of its entire unpaid principal
balance; fourth, as a recovery of any Prepayment Premium or Yield Maintenance
Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
fifth, as a recovery of any other amounts deemed to be due and owing in respect
of the related REO Mortgage Loan (other than, in the case of an REO Mortgage
Loan that relates to an ARD Loan after its Anticipated Repayment Date, accrued
and unpaid Post-ARD Additional Interest); and sixth, in the case of an REO
Mortgage Loan that relates to an ARD Loan after its Anticipated Repayment Date,
any accrued and unpaid Post-ARD Additional Interest.
(c) For the purposes of this Agreement, Post-ARD Additional Interest on an
ARD Loan or a successor REO Mortgage Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan or successor REO Mortgage
Loan, notwithstanding that the terms of the related loan documents so permit. To
the extent any Post-ARD Additional Interest is not paid on a current basis, it
shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Mortgage Loan, as the case may be, that constitute
Additional Master Servicing Compensation payable to the Master Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
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SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby acknowledged
that the groups of Mortgage Loans identified on the Mortgage Loan Schedule as
being cross-collateralized with each other are, in the case of each such
particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Mortgage Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement, including each of the defined terms
set forth in Section 1.01, shall be interpreted in a manner consistent with this
Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS,
CLASS S REMIC III REGULAR INTERESTS AND CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust be
established pursuant to this Agreement and, further, that such trust be
designated as "DLJ Commercial Mortgage Trust 2000-CF1". Norwest is hereby
appointed, and does hereby agree, to act as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby sell, assign, transfer and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders, all the right, title and
interest of the Depositor in, to and under (i) the Original Mortgage Loans, all
payments under and proceeds of such Mortgage Loans received after the Closing
Date (other than scheduled payments of interest and principal due on or before
the Cut-off Date), and all documents included in the related Mortgage Files and
any related Additional Collateral; (ii) any REO Property acquired in respect of
any such Mortgage Loan; (iii) such funds or assets as from time to time are
deposited in the Collection Account, the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and, if established,
the REO Account; (iv) the Mortgage Loan Purchase Agreement; (v) the Union
Capital Agreement (insofar as such right, title and interest was assigned to the
Depositor under the Mortgage Loan Purchase Agreement); and (vi) all other assets
included or to be included in the Trust Fund. This conveyance is subject to the
right of the Designated Sub-Servicers to primary service certain of the Original
Mortgage Loans pursuant to the Designated Sub-Servicer Agreements.
Under generally accepted accounting principles and for federal income tax
purposes, the Depositor shall report: (i) its acquisition of the Original
Mortgage Loans from the Mortgage Loan Seller, pursuant to the Mortgage Loan
Purchase Agreement, as a purchase of such Mortgage Loans from the Mortgage Loan
Seller; and (ii) its transfer of the Original Mortgage Loans to the Trustee,
pursuant to Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In
connection with the foregoing, the Depositor shall cause all of its records to
reflect such acquisitions as purchases and such transfer as a sale (in each
case, as opposed to a secured loan).
After the Depositor's transfer of the Original Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The conveyance of the Original Mortgage Loans and the related rights
and property accomplished hereby is absolute and is intended by the parties
hereto to constitute an absolute transfer of such Mortgage Loans and such other
related rights and property by the Depositor to the Trustee for the benefit of
the Certificateholders. Furthermore, it is not intended that such conveyance be
a pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan,
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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) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in all of the Depositor's right, title and interest in and to
the assets constituting the Trust Fund, including the Mortgage Loans subject
hereto from time to time, all principal and interest received on or with respect
to such Mortgage Loans after the Closing Date (other than scheduled payments of
interest and principal due and payable on such Mortgage Loans on or prior to the
Cut-off Date or, in the case of a Replacement Mortgage Loan, on or prior to the
related date of substitution), the Recording/Filing Reserve Funds, all amounts
held from time to time in the Collection Account, the Distribution Account, the
Interest Reserve Account, the Special Reserve Account, the Excess Liquidation
Proceeds Account and, if established, the REO Account and all reinvestment
earnings on such amounts, and all of the Depositor's right, title and interest
under the Mortgage Loan Purchase Agreement and the Union Capital Agreement
(insofar as, in the case of the Union Capital Agreement, such right, title and
interest was assigned to the Depositor under the Mortgage Loan Purchase
Agreement), (iii) the possession by the Trustee or its agent of the Mortgage
Notes with respect to the Mortgage Loans subject hereto from time to time and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor shall file or cause
to be filed, as a precautionary filing, a Form UCC-1 substantially in the form
attached as Exhibit J hereto in all appropriate locations in the State of New
York promptly following the initial issuance of the Certificates, and the Master
Servicer shall prepare and file at each such office, and the Trustee shall
execute, continuation statements with respect thereto, in each case within six
months prior to the fifth anniversary of the immediately preceding filing. The
Depositor shall cooperate in a reasonable manner with the Trustee and the Master
Servicer in preparing and filing such continuation statements. This Section
2.01(c) shall constitute notice to the Trustee pursuant to any requirements of
the UCC in effect in New York.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the Mortgage Loan Purchase Agreement, to deliver to and
deposit with, or cause to be delivered to and deposited with, the Trustee or a
Custodian appointed thereby, on or before the Closing Date, the Mortgage File
and any Additional Collateral (other than Reserve Funds) for each Original
Mortgage Loan so assigned. In addition, with respect to each Mortgage Loan under
which any Additional Collateral is in the form of a Letter of Credit as of the
Closing Date, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Seller to cause to be prepared,
executed and delivered to the issuer of each such Letter of Credit such notices,
assignments and acknowledgments as are necessary to cause the recognition, under
such Letter of Credit, of the Trustee as the beneficiary thereof and drawing
party thereunder. The Depositor shall deliver to the Trustee on or before the
Closing Date a fully executed counterpart of each of the Mortgage Loan Purchase
Agreement and the Union Capital Agreement.
(e) As soon as reasonably possible, and in any event within 45 days after
the later of (i) the Closing Date (or, in the case of a Replacement Mortgage
Loan substituted as contemplated by
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Section 2.03, after the related date of substitution) and (ii) the date on which
all recording information necessary to complete the subject document is received
by the Trustee, the Trustee shall complete (to the extent necessary), and shall
deliver to the Master Servicer, each assignment of Mortgage and assignment of
Assignment of Leases in favor of the Trustee referred to in clauses (iv) and (v)
of the definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf and each UCC-2 and UCC-3 in favor of the Trustee
referred to in clause (viii) of the definition of "Mortgage File" that has been
received by the Trustee or a Custodian on its behalf; and the Master Servicer
shall cause each such assignment and each such UCC-2 and UCC-3 to be submitted
for recording or filing, as the case may be, in the appropriate office for real
property records or UCC Financing Statements, as applicable. Each such
assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee following
filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the Master Servicer shall obtain therefrom a certified copy of the
recorded original. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Master Servicer shall direct the Mortgage Loan Seller to prepare or cause to be
prepared promptly, pursuant to the Mortgage Loan Purchase Agreement, a
substitute therefor or cure such defect, as the case may be, and thereafter the
Master Servicer shall, upon receipt thereof, cause the same to be duly recorded
or filed, as appropriate. If the Mortgage Loan Seller has been so notified and
has not prepared a substitute document or cured such defect, as the case may be,
within 60 days, the Master Servicer shall promptly notify the Trustee, the
Special Servicer, the Rating Agencies and the Controlling Class Representative.
The Mortgage Loan Seller shall be responsible for paying the fees and expenses
of the Master Servicer in connection with the foregoing, as more particularly
provided for in the Mortgage Loan Purchase Agreement; and, in connection
therewith, the Mortgage Loan Seller is obligated to deliver to the Trustee or
its designee (which shall be the Master Servicer) cash in an amount equal to the
product of $375.00 times the number of Mortgage Loans (the "Recording/Filing
Reserve Funds"), which cash is to be applied toward the recording and filing of
documents for the Mortgage Loans as contemplated in this paragraph (with any
excess funds relating to the Original Mortgage Loansto be retained by the Master
Servicer as Additional Master Servicing Compensation when all such recording and
filing for all the Original Mortgage Loans has been completed and with any
excess funds relating to any Particular Replacement Mortgage Loans to be
retained by the Master Servicer as Additional Master Servicing Compensation when
all such recording and filing for such Replacement Mortgage Loan has been
completed).
The Master Servicer shall establish and maintain one or more accounts
(collectively, the "Recording/Filing Reserve Account"), in which the Master
Servicer shall deposit and hold the Recording/Filing Reserve Funds. Each account
constituting the Recording/Filing Reserve Account shall be an Eligible Account.
The Recording/Filing Reserve Funds may be invested in Permitted Investments in
accordance with the provisions of Section 3.06. At such time as all assignments
of Mortgage, assignments of Assignments of Leases and UCC Financing Statements
required to be recorded or filed, as applicable, with respect to all of the
Original Mortgage Loans or with respect to any particular Replacement Mortgage
Loan, pursuant to the prior paragraph of this Section 2.01(e), have been so
recorded or filed, as the case may be, the Master Servicer shall withdraw from
the Recording/Filing Reserve Account and pay to itself an amount sufficient to
reimburse itself for all costs and expenses reasonably incurred by it in
fulfilling its duties with respect to the Original Mortgage Loans or such
Replacement Mortgage Loan, as the case may be, under this Section 2.01(e) and,
promptly thereafter, shall withdraw from the Recording/Filing Reserve Account
and pay to itself as Additional Master Servicing Compensation any
Recording/Filing Reserve Funds relating to the Original Mortgage Loans or with
respect to such Replacement Mortgage Loan, as the case may be remaining on
deposit therein. If the Recording/Filing Reserve Funds are insufficient to
reimburse the Master Servicer for all costs and expenses reasonably incurred by
it in fulfilling its duties under this Section 2.01(e) with respect to the
Mortgage Loans, then the Master Servicer shall make a claim on the Mortgage Loan
Seller, in accordance with the Mortgage Loan Purchase Agreement, for the amount
of the shortfall. The Recording/Filing Reserve Funds and
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the reserve account in which they are held, shall be part of the Trust Fund but
outside any REMIC Pool or Grantor Trust Pool.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the Mortgage Loan Purchase Agreement, to deliver to and
deposit with, or cause to be delivered to and deposited with, the Master
Servicer, on or before the Closing Date, the following items: (i) originals or
copies of all financial statements, appraisals, environmental/engineering
reports, leases, rent rolls and tenant estoppels in the possession or under the
control of the Mortgage Loan Seller that relate to the Original Mortgage Loans
and, to the extent they are not required to be a part of a Mortgage File in
accordance with the definition thereof, originals or copies of all documents,
certificates and opinions in the possession or under the control of the Mortgage
Loan Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Original Mortgage Loans; and (ii) all
unapplied Reserve Funds and Escrow Payments in the possession or under the
control of the Mortgage Loan Seller that relate to the Original Mortgage Loans.
The Master Servicer shall hold all such documents, records and funds on behalf
of the Trustee in trust for the benefit of the Certificateholders. The Depositor
hereby represents and warrants that it has contractually obligated the Mortgage
Loan Seller, pursuant to the Mortgage Loan Purchase Agreement, to provide the
Trustee, the Master Servicer and the Special Servicer with a power of attorney
to enable the Trustee (or the Master Servicer or Special Servicer on its behalf)
to record any loan documents required to be recorded pursuant to Section
2.01(e), that the Trustee has been unable to record.
(g) Also in connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor shall deliver to and deposit with, or cause to be
delivered to and deposited with, the Master Servicer, on or before the Closing
Date, the original or a copy of any Group Environmental Insurance Policy.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee, by
its execution and delivery of this Agreement, hereby accepts receipt on behalf
of the Trust, directly or through a Custodian on its behalf, of (i) the Original
Mortgage Loans and all documents delivered to it that constitute portions of the
related Mortgage Files, and (ii) all other assets delivered to it and included
in the Trust Fund, in good faith and without notice of any adverse claim, and
declares that it or a Custodian on its behalf holds and will hold such documents
and any other documents received by it that constitute portions of the Mortgage
Files, and that it holds and will hold the Original Mortgage Loans and such
other assets, together with any other Mortgage Loans and assets subsequently
delivered to it that are to be included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Trustee or such Custodian shall hold any Letter of Credit in a custodial
capacity only and shall have no obligation to maintain, extend the term of,
enforce or otherwise pursue any rights under such Letter of Credit. In
connection with the foregoing, the Trustee hereby certifies to each of the other
parties hereto, the Mortgage Loan Seller and the Underwriters that, as to each
Original Mortgage Loan, except as specifically identified in the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Exhibit B-2, (i) the
original Mortgage Note specified in clause (i) of the definition of "Mortgage
File" and all allonges thereto, if any (or a copy of such Mortgage Note,
together with a lost note affidavit and indemnity certifying that the original
of such Mortgage Note has been lost), are in its possession or the possession of
a Custodian on its behalf, and (ii) such Mortgage Note (or copy thereof)
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has been reviewed by it or by such Custodian on its behalf and (A) appears
regular on its face (handwritten additions, changes or corrections shall not
constitute irregularities if initialed by the Borrower), (B) appears to have
been executed and (C) purports to relate to such Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund, and (iii)
the second anniversary of the Closing Date), the Trustee or a Custodian on its
behalf shall review the documents delivered to it or such Custodian with respect
to each Original Mortgage Loan, and the Trustee shall, subject to Sections 1.04,
2.02(c) and 2.02(d), certify in writing (substantially in the form of Exhibit
B-3) to each of the other parties hereto, the Mortgage Loan Seller, the
Controlling Class Representative and the Underwriters that, as to each Original
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification): (i) the original
Mortgage Note specified in clause (i) of the definition of "Mortgage File" and
all allonges thereto, if any (or a copy of such Mortgage Note, together with a
lost note affidavit and indemnity certifying that the original of such Mortgage
Note has been lost), the original or copy of each recorded document specified in
clauses (ii) through (v) of the definition of "Mortgage File", and the original
or copy of the policy of title insurance specified in clause (vii) of the
definition of "Mortgage File" and each document specified in clause (viii) of
the definition of "Mortgage File" (without regard to the parenthetical), is in
its possession or the possession of a Custodian on its behalf; (ii) if such
report is due more than 180 days after the Closing Date, the recordation/filing
contemplated by Section 2.01(e) has been completed (based solely on receipt by
the Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan; and (iv) based on the
examinations referred to in Section 2.02(a) above and this Section 2.02(b) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (ii) (other than
the zip code) and (vi)(B) of the definition of "Mortgage Loan Schedule"
accurately reflects the information set forth in the Mortgage File. At any time
subsequent to the second anniversary of the Closing Date, the Trustee shall,
upon request, prepare and deliver to the requesting party (including any
Certificateholder) an updated version of the exception report provided for in
the prior sentence.
If the Mortgage Loan Seller or Union Capital substitutes a Replacement
Mortgage Loan for any Deleted Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th
day following the related date of substitution (and, if any exceptions are
noted, every 90 days thereafter until the earliest of (i) the date on which such
exceptions are eliminated and all related recording/filing has been completed,
(ii) the date on which such Replacement Mortgage Loan is removed from the Trust
Fund and (iii) the second anniversary of the date on which such Replacement
Mortgage Loan was added to the Trust Fund). At any time subsequent to the second
anniversary of the date on which such Replacement Mortgage Loan is added to the
Trust Fund, the Trustee shall, upon request, prepare and deliver to the
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requesting party (including any Certificateholder) an updated version of the
exception report provided for in the prior sentence.
(c) None of the Trustee, the Master Servicer, the Special Servicer or any
Custodian is under any duty or obligation to inspect, review or examine any of
the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, except as expressly provided in Section 2.01(e), none of the
Trustee, the Master Servicer, the Special Servicer or any Custodian shall have
any responsibility for determining whether the text of any assignment or
endorsement is in proper or recordable form, whether the requisite recording of
any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction.
(d) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the Mortgage Loan Seller as to the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), (vii) and (viii) of the definition of "Mortgage File" have been received
and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage Loans by
the Mortgage Loan Seller and Union Capital; The Special Reserve Account.
(a) If any party hereto discovers, or receives notice from a non-party,
that any document constituting a part of a Mortgage File has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the Mortgage File), or does not appear to be regular on
its face (each, a "Document Defect"), or that there exists a breach of any
representation or warranty made by the Mortgage Loan Seller pursuant to Section
4 of the Mortgage Loan Purchase Agreement or, in the case of a Union Capital
Mortgage Loan, the Union Capital Agreement (each, a "Breach"), then such party
shall give prompt written notice thereof to the other parties hereto, including
(unless it is the party that discovered the Document Defect or Breach) the
Trustee. Upon the Trustee's discovery or receipt of notice of any such Document
Defect or Breach, the Trustee shall notify the Master Servicer, the Special
Servicer, the Controlling Class Representative, the Underwriters, the Mortgage
Loan Seller and, if a Union Capital Mortgage Loan is involved, Union Capital. If
such Document Defect and/or Breach materially and adversely affects the value of
any Mortgage Loan or the interests of the Certificateholders therein, then such
Document Defect shall constitute a "Material Document Defect" or such Breach
shall constitute a "Material Breach", as the case may be. Without limiting any
of the foregoing, the absence of an original Mortgage Note, an original or a
copy of a Mortgage (with or without evidence of recording thereon) or an
original or a copy of a lender's title insurance policy from a Mortgage File or
any material nonconformity to the Mortgage Loan Schedule of any such document or
any material irregularity on the face thereof (without the presence of any
factor, such as the presence of a lost note affidavit with an indemnity in the
case of a missing Mortgage Note or the presence of a pro forma title policy or a
commitment for title insurance "marked-up" at the closing of the subject
Mortgage Loan in the case of a missing lender's title insurance policy, that in
the Trustee's reasonable discretion
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reasonably mitigates such absence, non-conformity or irregularity), shall be a
Material Document Defect.
(b) Promptly upon its becoming aware of any Material Document Defect or
Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and the Special Servicer may) direct the Responsible Party in respect of such
Material Document Defect or Material Breach, as the case may be, that it must,
not later than 90 days (or such other period as is provided in the Mortgage Loan
Purchase Agreement, if the Mortgage Loan Seller is the Responsible Party, or the
Union Capital Agreement, if Union Capital is the Responsible Party) from the
receipt by such Responsible Party of such notice (such 90-day or other period,
the "Initial Resolution Period"), cure such Material Document Defect or Material
Breach, as the case may be, in all material respects or repurchase the affected
Mortgage Loan (as, if and to the extent required by the Mortgage Loan Purchase
Agreement, if the Mortgage Loan Seller is the Responsible Party, or required by
the Union Capital Agreement, if Union Capital is the Responsible Party), at the
applicable Purchase Price (or, in the case of the repurchase of a Union Capital
Mortgage Loan by Union Capital, at such other price as is provided for in the
Union Capital Agreement, with any shortfall between such price and the
applicable Purchase Price to be made up by the Mortgage Loan Seller pursuant to
the Mortgage Loan Purchase Agreement); provided that if (i) such Material
Document Defect or Material Breach, as the case may be, does not relate to
whether the affected Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code, (ii) such Material Document Defect or
Material Breach, as the case may be, is capable of being cured but not within
the applicable Initial Resolution Period, (iii) the Responsible Party in respect
of such Material Document Defect or Material Breach, as the case may be, has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, within the applicable Initial
Resolution Period, and (iv) such Responsible Party shall have delivered to the
Trustee a certification executed on behalf of such Responsible Party by an
officer thereof (A) setting forth the reason that such Material Document Defect
or Material Breach, as the case may be, is not capable of being cured within the
applicable Initial Resolution Period, (B) specifying what actions such
Responsible Party is pursuing in connection with the cure thereof, and (C)
stating that such Responsible Party anticipates that such Material Document
Defect or Material Breach, as the case may be, will be cured within an
additional period not to exceed the applicable Resolution Extension Period (a
copy of which certification shall be delivered by the Trustee to the Master
Servicer, the Special Servicer and the Controlling Class Representative), then
such Responsible Party shall have an additional period equal to the applicable
Resolution Extension Period to complete such cure (or, if it fails to complete
such cure, to repurchase the affected Mortgage Loan); and provided, further,
that, in lieu of effecting any such repurchase (but, in any event, no later than
such repurchase would have to have been completed), the Responsible Party in
respect of such Material Document Defect or Material Breach, as the case may be,
shall be permitted, during the three-month period following the Startup Day for
REMIC I (or during the two-year period following such Startup Day if the
affected Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section 1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying Substitute
Mortgage Loans and to pay a cash amount equal to the applicable Substitution
Shortfall Amount (or, in the case of the replacement of a Union Capital Mortgage
Loan by Union Capital, to pay such other cash amount as is provided for in the
Union Capital Agreement, with any shortfall between such other cash amount and
the applicable Substitution Shortfall Amount to be made up by the Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement), subject to any other
applicable terms and conditions of the Mortgage Loan Purchase Agreement or the
Union Capital Agreement, as the case may be, and this Agreement. If any
substitution for a Deleted Mortgage Loan is not completed in all respects by the
end of the three-month (or, if applicable, the two-year) period
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contemplated by the preceding sentence, the Responsible Party (whether it is the
Mortgage Loan Seller or Union Capital) that desired to effect such substitution
shall be barred from doing so (and, accordingly, will be limited to the
cure/repurchase remedies contemplated hereby), and no party hereto shall be
liable thereto for any loss, liability or expense resulting from the expiration
of such period. If any Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 2.03, the Master Servicer shall designate the
Collection Account as the account to which funds in the amount of the applicable
Purchase Price or Substitution Shortfall Amount (as the case may be) are to be
wired, and the Master Servicer shall promptly notify the Trustee when such
deposit is made. Any such repurchase or replacement of a Mortgage Loan shall be
on a whole loan, servicing released basis (subject to any rights of a Designated
Sub-Servicer or the Master Servicer, as applicable, to continue to primary
service the related Mortgage Loans as set forth in the related Designated
Sub-Servicer Agreement or in the Servicing Rights Purchase Agreement, as
applicable). Notwithstanding the foregoing, if there exists in respect of any
Union Capital Mortgage Loan a Material Breach on the part of the Mortgage Loan
Seller under the Mortgage Loan Purchase Agreement (other than a Material Breach
of any of the representations and warranties of the Mortgage Loan Seller
relating to or affecting the status of the affected Mortgage Loan as a
"qualified mortgage" within the meaning of the REMIC Provisions) and a Material
Breach on the part of Union Capital under the Union Capital Agreement, and such
Material Breaches give rise to a cure or repurchase/substitution obligation
under both the Mortgage Loan Purchase Agreement and the Union Capital Agreement,
then the Master Servicer shall request the Mortgage Loan Seller to effect a cure
of the Mortgage Loan Seller's Material Breach or to repurchase or replace the
affected Mortgage Loan only if Union Capital does not do so within Union
Capital's applicable cure/repurchase/substitution period, and the
cure/repurchase/substitution period for the Mortgage Loan Seller will be deemed
not to commence until such request is so made of the Mortgage Loan Seller;
provided that such cure/repurchase/substitution period for the Mortgage Loan
Seller shall in no event extend more than 90 days from the end of the
cure/repurchase/substitution period for Union Capital.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Mortgage
Loan Seller or Union Capital as contemplated by this Section 2.03, then, prior
to the subject repurchase or substitution, the Master Servicer shall use its
best efforts, subject to the terms of the related Mortgage Loans, to prepare
and, to the extent necessary and appropriate, have executed by the related
Borrower and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto; provided that no
such termination shall be effected unless and until the Master Servicer and the
Trustee have received from the Depositor, the Mortgage Loan Seller or, in the
case of a Union Capital Mortgage Loan, Union Capital (i) an Opinion of Counsel
to the effect that such termination will not cause an Adverse REMIC Event to
occur with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool and (ii) written confirmation from each
Rating Agency that such termination will not cause an Adverse Rating Event to
occur with respect to any Class of Rated Certificates. To the extent necessary
and appropriate, the Trustee shall execute (or, subject to Section 3.10, provide
the Master Servicer with a limited power of attorney that enables the Master
Servicer to execute) the documentation referred to in the prior sentence;
provided that the Trustee shall not be liable for any misuse of any such power
of attorney by the Master Servicer. The Master Servicer shall advance all costs
and expenses incurred by the Trustee and the Master Servicer pursuant to this
paragraph, and such advances shall (i) constitute and be reimbursable as
Servicing Advances and (ii) be included in the calculation of Purchase Price for
the Mortgage Loan(s) to be
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repurchased or replaced. Neither the Master Servicer nor the Special Servicer
shall be liable to any Certificateholder or any other party hereto if the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph for any reason beyond the control of the
Master Servicer or Special Servicer, as the case may be. If the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph, then, for purposes of this Section 2.03, the
Mortgage Loan Purchase Agreement and the Union Capital Agreement, including for
purposes of (i) determining whether any Breach or Document Defect is a Material
Breach or Material Document Defect, as the case may be, and (ii) the application
of remedies, such Cross-Collateralized Group shall be treated as a single
Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Deleted Mortgage
Loan by a Responsible Party as contemplated by this Section 2.03, the Master
Servicer shall direct the Responsible Party effecting the substitution to
deliver the related Mortgage File to the Trustee, to certify that such
substitute mortgage loan satisfies or such substitute mortgage loans satisfy, as
the case may be, all of the requirements of the definition of "Qualifying
Substitute Mortgage Loan" and to send such certification to the Trustee. No
mortgage loan may be substituted for a Deleted Mortgage Loan as contemplated by
this Section 2.03 if the Mortgage Loan to be replaced was itself a Replacement
Mortgage Loan, in which case, absent a cure of the relevant Material Breach or
Material Document Defect, the affected Mortgage Loan will be required to be
repurchased as contemplated hereby. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) after the related date of substitution, and
Monthly Payments due with respect to each Deleted Mortgage Loan (if any) after
the Cut-off Date and on or prior to the related date of substitution, shall be
part of the Trust Fund. Monthly Payments due with respect to each Replacement
Mortgage Loan (if any) on or prior to the related date of substitution, and
Monthly Payments due with respect to each Deleted Mortgage Loan (if any) after
the related date of substitution, shall not be part of the Trust Fund and are to
be remitted by the Master Servicer to the Responsible Party effecting the
related substitution promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced by a Responsible
Party as contemplated by this Section 2.03, the Master Servicer shall direct the
Mortgage Loan Seller to amend the Mortgage Loan Schedule to reflect the removal
of any Deleted Mortgage Loan and, if applicable, the substitution of the related
Replacement Mortgage Loan(s); and, upon its receipt of such amended Mortgage
Loan Schedule, the Master Servicer shall deliver or cause the delivery of such
amended Mortgage Loan Schedule to the other parties hereto. Upon any
substitution of one or more Replacement Mortgage Loans for a Deleted Mortgage
Loan, such Replacement Mortgage Loan(s) shall become part of the Trust Fund and
be subject to the terms of this Agreement in all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the Master
Servicer and/or the Trustee pursuant to this Section 2.03(b), including
reasonable attorney fees and expenses, shall constitute Servicing Advances to
the extent not collected from the Mortgage Loan Seller.
(c) Upon receipt of an Officer's Certificate from the Master Servicer to
the effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by a
Responsible Party as contemplated by this Section 2.03 has been deposited in the
Collection Account, and further, if applicable, upon receipt of the Mortgage
File for each Replacement Mortgage Loan (if any) to be substituted for a Deleted
Mortgage Loan, together with the certification referred to in the penultimate
paragraph of Section 2.03(b) from the Responsible Party effecting the
substitution, if any, the Trustee shall (i) release or cause the release of the
Mortgage File and any Additional Collateral held by or on behalf of the Trustee
for the Deleted Mortgage Loan to
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the Responsible Party effecting the repurchase/substitution or its designee and
(ii) execute and deliver such instruments of release, transfer and/or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the Responsible Party effecting the
repurchase/substitution or its designee the ownership of the Deleted Mortgage
Loan, and the Master Servicer shall notify the applicable Borrowers of the
transfers of the Deleted Mortgage Loan(s) and any Replacement Mortgage Loan(s).
In connection with any such repurchase or substitution by a Responsible Party,
each of the Master Servicer and the Special Servicer shall deliver to the
Responsible Party effecting the repurchase/substitution or its designee any
portion of the related Servicing File, together with any Escrow Payments,
Reserve Funds and Additional Collateral, held by or on behalf of the Master
Servicer or the Special Servicer, as the case may be, with respect to the
Deleted Mortgage Loan, in each case at the expense of the Responsible Party
effecting the repurchase/substitution. In connection with any repurchase or
replacement of a Union Capital Mortgage Loan by the Mortgage Loan Seller, the
Trustee shall assign to the Mortgage Loan Seller all right, title and interest
of the Trustee in respect of such Mortgage Loan under the Union Capital
Agreement. The costs and expenses incurred by the Master Servicer, the Special
Servicer and/or the Trustee pursuant to this Section 2.03(c), to the extent not
collected from the Mortgage Loan Seller or reimbursed from the Special Reserve
Account, shall be reimbursable to each of them as Servicing Advances in respect
of the affected Mortgage Loan.
(d) The Mortgage Loan Purchase Agreement and the Union Capital Agreement
provide the sole remedies available to the Certificateholders, or the Trustee on
their behalf, respecting any Breach or Document Defect. If a Responsible Party
defaults on its obligations to repurchase or replace any Mortgage Loan as
contemplated by this Section 2.03, the Master Servicer shall promptly notify the
Trustee, and the Trustee shall notify the Certificateholders. Thereafter, the
Master Servicer shall take such actions on behalf of the Trust with respect to
the enforcement of such repurchase/substitution obligations, including the
institution and prosecution of appropriate legal proceedings, as the Master
Servicer shall determine are in the best interests of the Certificateholders
(taken as a collective whole). Any and all reasonable out-of-pocket expenses
incurred by the Master Servicer, the Special Servicer and/or the Trustee,
including, reasonable attorney fees and expenses pursuant to this Section
2.03(d), to the extent not collected from the Mortgage Loan Seller or reimbursed
from the Special Reserve Account, shall constitute Servicing Advances in respect
of the affected Mortgage Loan.
(e) If the Master Servicer, the Special Servicer or the Trustee has
identified as of October 27, 2001 one or more conditions that will become
Recording/Title Policy Omissions with respect to any Mortgage Loan on December
27, 2001 if not earlier corrected, such party shall, on or about October 27,
2001 (or, if such day is not a Business Day, the next succeeding Business Day),
provide written notification of the conditions that could become Recording/Title
Policy Omissions to the other parties hereto, the Controlling Class
Representative and the Mortgage Loan Seller. On December 27, 2001, the Master
Servicer shall, unless the Controlling Class Representative permits the Master
Servicer to forebear from taking such action, exercise the rights afforded to
the Master Servicer under the Mortgage Loan Purchase Agreement to cause the
Mortgage Loan Seller to establish a Recording/Title Policy Reserve or
Recording/Title Policy Credit with respect to each Mortgage Loan that has a
Recording/Title Policy Omission. In furtherance of the preceding sentence, (A)
the Master Servicer shall establish one or more accounts (collectively, the
"Special Reserve Account"), each of which shall be an Eligible Account; (B) the
Master Servicer shall deposit any Recording/Title Policy Reserve into the
Special Reserve Account within one Business Day after receipt; and (C) the
Master Servicer shall administer the Special Reserve Account in accordance with
the terms of the Mortgage
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Loan Purchase Agreement. Out-of-pocket costs and expenses incurred by the Master
Servicer in enforcing such rights will constitute Servicing Advances to the
extent not received from the Mortgage Loan Seller. In the event that the Master
Servicer is entitled to withdraw any funds from the Special Reserve Account or
to draw upon a Recording/Title Policy Credit to cover losses or expenses
directly incurred by the Trust Fund as a result of a Recording/Title Policy
Defect, then prior to making a Servicing Advance or incurring an Additional
Trust Fund Expense to cover such losses or expenses, the Master Servicer shall
deposit the funds withdrawn from the Special Reserve Account or received in
connection with a draw upon the Recording/Title Policy Credit, as the case may
be, into the Collection Account, and such amounts shall be deemed to be
"Liquidation Proceeds" for purposes of this Agreement (other than Section
3.11(c)) and shall be applied to cover such loss or expense. The Recording/Title
Policy Reserve or Recording/Title Policy Credit (or any unused balance thereof)
delivered by the Mortgage Loan Seller with respect to any Mortgage Loan shall be
released to the Mortgage Loan Seller by the Master Servicer upon the earlier of
the curing of all Recording/Title Policy Omissions with respect to such Mortgage
Loan and the removal of such Mortgage Loan from the Trust Fund. The Special
Reserve Account, and any Recording/Title Policy Reserves and Recording/Title
Policy Credits, shall be part of the Trust Fund but outside any REMIC Pool or
Grantor Trust Pool. Investment of the funds in Special Reserve Account shall be
governed by the Mortgage Loan Purchase Agreement.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Depositor'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 material instrument to which it is a party or by
which it is bound, which default or breach, in the good faith and reasonable
judgment of the Depositor, is likely to affect materially and adversely either
the ability of the Depositor to perform its obligations under this Agreement or
the financial condition of the Depositor.
(iii) The Depositor has the full power and authority to own its properties,
to conduct its business as presently conducted by it and to enter into and
consummate all transactions involving the Depositor 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 Depositor, enforceable against the Depositor in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, 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.
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(v) The Depositor is not in violation of, and its execution and delivery
of, performance under and compliance with 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 Depositor's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required for the consummation by the
Depositor of the transactions contemplated herein, except (A) for those
consents, approvals, authorizations or orders that previously have been
obtained, (B) such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and sale of the Certificates by the
Underwriters, and (C) any recordation of the assignments of Mortgage Loan
documents to the Trustee pursuant to Section 2.01(e), which has not yet been
completed.
(vii) The Depositor's transfer of the Original Mortgage Loans to the
Trustee as contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(viii) The Depositor is not transferring the Original Mortgage Loans to the
Trustee with any intent to hinder, delay or defraud its present or future
creditors.
(ix) The Depositor has been solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Original Mortgage Loans
to the Trustee pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Original Mortgage Loans to
the Trustee pursuant to Section 2.01(b), the value of the Depositor's assets,
either taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Depositor's debts and obligations, including contingent
and unliquidated debts and obligations of the Depositor, and the Depositor will
not be left with unreasonably small assets or capital with which to engage in
and conduct its business.
(xi) The Depositor does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and obligations
as they mature.
(xii) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Depositor are pending or contemplated.
(xiii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely to the
Depositor, would prohibit the Depositor from entering into this Agreement or
that, in the Depositor's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Depositor to perform
its obligations under this Agreement or the financial condition of the
Depositor.
(xiv) Assuming the accuracy of the representations and warranties of the
Mortgage Loan Seller set forth in the Mortgage Loan Purchase Agreement,
immediately prior to the
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transfer of the Original Mortgage Loans to the Trustee for the benefit of the
Certificateholders pursuant to this Agreement, the Depositor had good and
marketable title to, and was the sole owner and holder of, each such Mortgage
Loan, and the Depositor has full right and authority to sell, assign and
transfer the Original Mortgage Loans.
(xv) The Depositor is transferring the Original Mortgage Loans to the
Trustee for the benefit of the Certificateholders free and clear of any and all
liens, pledges, charges and security interests created by or through the
Depositor.
(xvi) Except for any actions that are the express responsibility of another
party hereunder or under the Mortgage Loan Purchase Agreement, and further
except for actions that the Depositor is expressly permitted to complete
subsequent to the Closing Date, the Depositor has taken all actions required
under applicable law to effectuate the transfer of the Original Mortgage Loans
by the Depositor to the Trustee.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
any breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice thereof to
the other parties hereto.
SECTION 2.05. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Master Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations under
this Agreement.
(ii) The Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate the Master
Servicer'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 material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Master Servicer,
is likely to affect materially and adversely either the ability of the
Master Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions involving the Master Servicer
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 Master Servicer,
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enforceable against the Master Servicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, 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 Master Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with 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 Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer to
perform its obligations under this Agreement or the financial condition of
the Master Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained and where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of the Master Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that, if
determined adversely to the Master Servicer, would prohibit the Master
Servicer from entering into this Agreement or that, in the Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(viii) The Master Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as of
the Closing Date with respect to the Mortgage Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set forth in
Section 2.05(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
a breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
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SECTION 2.06. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, 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 California,
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 ensure
the enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The Special Servicer's execution and delivery of, performance
under and compliance with this Agreement will not violate the Special
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets, which default, in the good faith and reasonable judgment of the
Special Servicer, 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.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions involving the Special Servicer
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, performance under 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, the outcome
of which, in the Special Servicer's good faith and reasonable judgement,
would prohibit the Special Servicer from entering into this Agreement or,
in the Special Servicer's good faith and reasonable judgment, could
reasonably be expected 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) The Special Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
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(viii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained and where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of the Special Servicer to perform its obligations under this
Agreement.
(b) The representations and warranties of the Special Servicer set forth in
Section 2.06(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
a breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.07. Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with, each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a national
banking association under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan
(insofar as such enforceability is dependent upon compliance by the Trustee
with such laws) and to perform its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, 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 a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Trustee is likely
to affect materially and adversely either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(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, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of banks, and (B) general
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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, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously
have been obtained.
(vii) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or that, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in Section
2.07(a) shall survive the execution and delivery of this Agreement and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence. Upon discovery by any party hereto of a
breach of any such representations and warranties that materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice thereof to the other
parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the date of
its succession, each of the representations and warranties set forth in Section
2.07(a), subject to such appropriate modifications to the representation and
warranty set forth in Section 2.07(a)(i) to accurately reflect such successor's
jurisdiction of organization and whether it is a corporation, partnership, bank,
association or other type of organization.
SECTION 2.08. Designation of the Certificates.
(a) The Certificates shall consist of 18 Classes hereby designated as the
"Class S Certificates", the "Class A-1A Certificates", the "Class A-1B
Certificates", the "Class A-2 Certificates", the "Class A-3 Certificates", the
"Class A-4 Certificates", the "Class B-1 Certificates", the "Class B-2
Certificates", the "Class B-3 Certificates", the "Class B-4 Certificates", the
"Class B-5 Certificates", the "Class B-6 Certificates", the "Class B-7
Certificates, the "Class B-8 Certificates", the "Class C Certificates", the
"Class D Certificates, the "Class E Certificates" and the "Class R
Certificates", respectively.
(b) The Class A-1A, Class A-1B, Class A-2, Class A-3 and Class A-4
Certificates are collectively designated as the "Class A Certificates".
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(c) The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7 and Class B-8 Certificates are collectively designated as the "Class B
Certificates".
(d) The Class S, Class A-1A and Class A-1B Certificates are collectively
designated as the "Senior Certificates".
(e) The Class A-2, Class A-3, Class A-4, Class B, Class C, Class D and
Class R Certificates are collectively designated as the "Subordinate
Certificates".
(f) The Class A, Class B, Class C and Class D Certificates are collectively
designated as the "Principal Balance Certificates".
(g) The Class A-2, Class A-3, Class A-4, Class B, Class C and Class D
Certificates are collectively designated as the "Subordinate Principal Balance
Certificates".
(h) The Class S Certificates are also designated as the "Interest Only
Certificates".
(i) The Interest Only Certificates and the Principal Balance Certificates
are collectively designated as the "REMIC III Regular Interest Certificates".
SECTION 2.09. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Class R; Certain Matters Involving REMIC I.
(a) It is the intention of the parties hereto that the following segregated
pool of assets constitute a REMIC for federal income tax purposes and, further,
that such segregated pool of assets be designated as "REMIC I": (i) the Mortgage
Loans that are from time to time subject to this Agreement together with (A) all
payments under and proceeds of such Mortgage Loans received after the Closing
Date or, in the case of any such Mortgage Loan that is a Replacement Mortgage
Loan, after the related date of substitution (other than scheduled payments of
interest and principal due on or before the Cut-off Date or, in the case of any
such Mortgage Loan that is Replacement Mortgage Loan, on or before the related
date of substitution, exclusive of any amounts that constitute Post-ARD
Additional Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates and exclusive of Excess Servicing Fees), and (B) all
documents included in the related Mortgage Files and Servicing Files and any
related Additional Collateral; (ii) any REO Property acquired in respect of any
Mortgage Loan; (iii) such funds and assets as from time to time are deposited in
the Collection Account, the Distribution Account, the Interest Reserve Account,
the Excess Liquidation Proceeds Account and, if established, the REO Account
(exclusive of any amounts that constitute Post-ARD Additional Interest collected
in respect of the ARD Loans after their respective Anticipated Repayment Dates
and Excess Servicing Fees); (iv) the rights of the Depositor under the Mortgage
Loan Purchase Agreement (exclusive of any Recording/Title Policy Reserves and/or
Recording/Title Policy Credits delivered by the Mortgage Loan Seller to the
Master Servicer as contemplated by Section 2.03(e) and, further, exclusive of
the Recording/Filing Reserve Funds delivered by the Mortgage Loan Seller to the
Master Servicer as contemplated by Section 2.01(e)); and (v) the rights of the
Depositor under the Union Capital Agreement (insofar as such rights were
assigned thereto under the Mortgage Loan Purchase Agreement). The Closing Date
is hereby designated as the "Startup Day" of REMIC I within the meaning of
Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the Original Mortgage Loans and
certain related assets to the Trustee pursuant to Section 2.01(b) and in
exchange therefor, the REMIC I Regular
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Interests and the REMIC I Residual Interest shall be issued. A separate REMIC I
Regular Interest shall be issued with respect to each Original Mortgage Loan.
For purposes of this Agreement, each REMIC I Regular Interest shall relate to
the Original Mortgage Loan in respect of which it was issued, to each
Replacement Mortgage Loan (if any) substituted for such Original Mortgage Loan,
and to each REO Mortgage Loan deemed outstanding with respect to any REO
Property acquired in respect of any such Original Mortgage Loan or any such
Replacement Mortgage Loan. Neither the REMIC I Residual Interest nor any of the
REMIC I Regular Interests shall be certificated. The REMIC I Regular Interests
and the REMIC I Residual Interest, shall collectively constitute the entire
beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the REMIC I Residual
Interest shall constitute the sole "residual interest" (within the meaning of
Section 860G(a)(2) of the Code), in REMIC I. None of the parties hereto, to the
extent it is within the control thereof, shall create or permit the creation of
any other "interests" in REMIC I (within the meaning of Treasury regulation
section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Original Mortgage Loan set forth in the
Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated Principal
Balance. As of the Closing Date, the Uncertificated Principal Balance of each
REMIC I Regular Interest shall equal the Cut-off Date Principal Balance of the
related Original Mortgage Loan (as specified in the Mortgage Loan Schedule). On
each Distribution Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by any distributions of principal
deemed made with respect to such REMIC I Regular Interest on such Distribution
Date pursuant to Section 4.01(l) and, further, by any Unfunded Principal Balance
Reduction made with respect to such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.04(c). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC I Regular
Interest shall not otherwise be increased or reduced. Deemed distributions to
REMIC II in reimbursement of Unfunded Principal Balance Reductions with respect
to a REMIC I Regular Interest shall not constitute deemed distributions of
principal and shall not result in any reduction of the Uncertificated Principal
Balance of such REMIC I Regular Interest.
(f) Each REMIC I Regular Interest shall have a REMIC I Remittance Rate. The
REMIC I Remittance Rate with respect to any particular REMIC I Regular Interest
for any Interest Accrual Period shall be calculated as follows:
(i) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on a 30/360 Basis,
then the REMIC I Remittance Rate with respect to the subject REMIC I
Regular Interest for any Interest Accrual Period shall equal the Mortgage
Rate in effect for the related Original Mortgage Loan as of the Closing
Date, minus the applicable Administrative Fee Rate; and
(ii) if, as of the Closing Date, the related Original Mortgage Loan
bears or bore, as the case may be, interest calculated on an Actual/360
Basis, then the REMIC I Remittance Rate with respect to the subject REMIC I
Regular Interest for any Interest Accrual Period shall (subject to
adjustment as provided below in this clause (ii)) equal (A) the product of
(1) a fraction (expressed as a percentage), the numerator of which is the
number of days in such Interest
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Accrual Period, and the denominator of which is 30, multiplied by (2) the
Mortgage Rate in effect for the related Original Mortgage Loan as of the
Closing Date, minus (B) the applicable Administrative Fee Rate; provided
that, in the case of a REMIC I Regular Interest that corresponds to an
Interest Reserve Loan, if the subject Interest Accrual Period occurs during
the month of January of 2001 or any year thereafter or during the month of
December of 2000 or any year thereafter that does not immediately precede a
leap year, the REMIC I Remittance Rate with respect to such REMIC I Regular
Interest for such Interest Accrual Period shall equal (M) the REMIC I
Remittance Rate with respect to such REMIC I Regular Interest for such
Interest Accrual Period, calculated without regard to this proviso, minus
(N) a fraction (expressed as a percentage), the numerator of which is equal
to 12 times the related Interest Reserve Amount that is to be transferred
from the Distribution Account to the Interest Reserve Account in the
following calendar month in accordance with Section 3.04(c), and the
denominator of which is equal to the Uncertificated Principal Balance of
such REMIC I Regular Interest outstanding immediately prior to the related
Distribution Date; and, provided, further, that, in the case of a REMIC I
Regular Interest that corresponds to an Interest Reserve Loan, if the
subject Interest Accrual Period occurs during the month of February of 2001
or any year thereafter, the REMIC I Remittance Rate with respect to such
REMIC I Regular Interest for such Interest Accrual Period shall equal (S)
the REMIC I Remittance Rate with respect to such REMIC I Regular Interest
for such Interest Accrual Period, calculated without regard to this
proviso, plus (T) a fraction (expressed as a percentage), the numerator of
which is equal to 12 times any related Interest Reserve Amount(s) to be
transferred from the Interest Reserve Account to the Distribution Account
pursuant to Section 3.05(c) for distribution on the related Distribution
Date, and the denominator of which is equal to the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior to
the related Distribution Date.
(g) Each REMIC I Regular Interest shall bear interest, and such interest
shall commence accruing on the Cut-off Date. In the case of each REMIC I Regular
Interest, such interest shall be calculated on a 30/360 Basis and, during each
Interest Accrual Period, shall accrue at the REMIC I Remittance Rate with
respect to such REMIC I Regular Interest for such Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to the related Distribution Date. The total amount of such
interest accrued with respect to each REMIC I Regular Interest during each
Interest Accrual Period (herein referred to as the "Interest Accrual Amount"
with respect to such REMIC I Regular Interest for such Interest Accrual Period)
shall equal 1/12 of the product of (i) the REMIC I Remittance Rate with respect
to such REMIC I Regular Interest for such Interest Accrual Period, multiplied by
(ii) the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date. The portion of
the Interest Accrual Amount with respect to any REMIC I Regular Interest for any
Interest Accrual Period that shall be distributable to REMIC II, as the holder
of such REMIC I Regular Interest, on the related Distribution Date pursuant to
Section 4.01(l), shall be an amount (herein referred to as the "Current Interest
Distribution Amount" with respect to such REMIC I Regular Interest for the
related Distribution Date) equal to (i) the Interest Accrual Amount with respect
to such REMIC I Regular Interest for the related Interest Accrual Period,
reduced (to not less than zero) by (ii) the portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that is allocable to
such REMIC I Regular Interest. For purposes of the foregoing, the Net Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date shall be
allocated among all the REMIC I Regular Interests on a pro rata basis in
accordance with their respective Interest Accrual Amounts for the related
Interest Accrual Period. If the entire Current Interest Distribution Amount with
respect to any REMIC I Regular Interest for any Distribution Date is not deemed
distributed to REMIC II, as the holder of such REMIC I
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Regular Interest, on such Distribution Date pursuant to Section 4.01(l), then
the unpaid portion of such Current Interest Distribution Amount shall be added
to, and be payable as part of, the Carryforward Interest Distribution Amount
with respect to such REMIC I Regular Interest for future Distribution Dates. The
"Carryforward Interest Distribution Amount" with respect to any REMIC I Regular
Interest for any Distribution Date is the excess, if any, of (i) all Current
Interest Distribution Amounts with respect to such REMIC I Regular Interest for
all prior Distribution Dates, if any, over (ii) the total amount of interest
deemed distributed to REMIC II with respect to such REMIC I Regular Interest on
all such prior Distribution Dates, if any, pursuant to Section 4.01(l).
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC I Residual Interest will not have a principal balance and
will not bear interest.
SECTION 2.10. Conveyance of the REMIC I Regular Interests; Acceptance of
the REMIC I Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all of its
right, title and interest in and to the REMIC I Regular Interests to the Trustee
for the benefit of the REMIC III Regular Interest Certificateholders and the
Class R Certificateholders. The Trustee acknowledges the assignment to it of the
REMIC I Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future REMIC III
Regular Interest Certificateholders and Class R Certificateholders.
SECTION 2.11. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain Matters Involving REMIC
II.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests to
the Trustee pursuant to Section 2.10 and in exchange therefor, the REMIC II
Regular Interests and the REMIC II Residual Interest shall be issued. There
shall be 15 separate REMIC II Regular Interests. Neither the REMIC II Residual
Interest nor any of the REMIC II Regular Interests shall be certificated. The
REMIC II Regular Interests and the REMIC II Residual Interest shall collectively
constitute the entire beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the "regular interests"
(within the meaning of Section 860G(a)(1) of the Code), and the REMIC II
Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
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(d) The REMIC II Regular Interests are hereby designated as "REMIC II
Regular Interest A-1A", "REMIC II Regular Interest A-1B", "REMIC II Regular
Interest A-2", "REMIC II Regular Interest A-3", "REMIC II Regular Interest A-4",
"REMIC II Regular Interest B-1", "REMIC II Regular Interest B-2", "REMIC II
Regular Interest B-3", "REMIC II Regular Interest B-4", "REMIC II Regular
Interest B-5", "REMIC II Regular Interest B-6", "REMIC II Regular Interest B-7",
"REMIC II Regular Interest B-8", "REMIC II Regular Interest C" and "REMIC II
Regular Interest D", respectively.
(e) Each REMIC II Regular Interest shall have an Uncertificated Principal
Balance. The following table sets forth for each REMIC II Regular Interest the
initial Uncertificated Principal Balance thereof:
DESIGNATION OF INITIAL UNCERTIFICATED
REMIC II REGULAR INTEREST PRINCIPAL BALANCE
------------------------- ----------------------
A-1A $ 96,065,000
A-1B $566,400,000
A-2 $ 44,312,000
A-3 $ 37,665,000
A-4 $ 13,294,000
B-1 $ 31,018,000
B-2 $ 11,078,000
B-3 $ 31,019,000
B-4 $ 8,862,000
B-5 $ 2,216,000
B-6 $ 6,647,000
B-7 $ 8,862,000
B-8 $ 8,863,000
C $ 15,952,000
D $ 3,988,440
On each Distribution Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall be permanently reduced by any distributions of
principal deemed made with respect to such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.01(k) and, further, by any Unfunded
Principal Balance Reduction made with respect to such REMIC II Regular Interest
on such Distribution Date pursuant to Section 4.04(b). Except as provided in the
preceding sentence, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall not otherwise be increased or decreased. Deemed
distributions to REMIC III in reimbursement of Unfunded Principal Balance
Reductions with respect to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) Each REMIC II Regular Interest shall have a REMIC II Remittance Rate
that, with respect to any Interest Accrual Period, shall equal the weighted
average, expressed as a percentage and rounded to eight decimal places, of the
respective REMIC I Remittance Rates in effect for all the REMIC I Regular
Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such REMIC I Regular Interests
outstanding immediately prior to the related Distribution Date.
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(g) Each REMIC II Regular Interest shall bear interest, and such interest
shall commence accruing on the Cut-off Date. In the case of each REMIC II
Regular Interest, such interest shall be calculated on a 30/360 Basis and,
during each Interest Accrual Period, shall accrue at the REMIC II Remittance
Rate with respect to such REMIC II Regular Interest for such Interest Accrual
Period on the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to the related Distribution Date. The total amount
of such interest accrued with respect to each REMIC II Regular Interest during
each Interest Accrual Period (herein referred to as the "Interest Accrual
Amount" with respect to such REMIC II Regular Interest for such Interest Accrual
Period) shall equal 1/12 of the product of (i) the REMIC II Remittance Rate with
respect to such REMIC II Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such REMIC II Regular
Interest outstanding immediately prior to the related Distribution Date. The
portion of the Interest Accrual Amount with respect to any REMIC II Regular
Interest for any Interest Accrual Period that shall be distributable to REMIC
III, as the holder of such REMIC II Regular Interest, on the related
Distribution Date pursuant to Section 4.01(k), shall be an amount (herein
referred to as the "Current Interest Distribution Amount" with respect to such
REMIC II Regular Interest for the related Distribution Date) equal to (i) the
Interest Accrual Amount with respect to such REMIC II Regular Interest for the
related Interest Accrual Period, reduced (to not less than zero) by (ii) the
portion of any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date that is allocable to such REMIC II Regular Interest. For purposes of the
foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated among all the REMIC II Regular Interests on
a pro rata basis in accordance with their respective Interest Accrual Amounts
for the related Interest Accrual Period. If the entire Current Interest
Distribution Amount with respect to any REMIC II Regular Interest for any
Distribution Date is not deemed distributed to REMIC III, as the holder of such
REMIC II Regular Interest, on such Distribution Date pursuant to Section
4.01(k), then the unpaid portion of such Current Interest Distribution Amount
shall be added to, and be payable as part of, the Carryforward Interest
Distribution Amount with respect to such REMIC II Regular Interest for future
Distribution Dates. The "Carryforward Interest Distribution Amount" with respect
to any REMIC II Regular Interest for any Distribution Date is the excess, if
any, of (i) all Current Interest Distribution Amounts with respect to such REMIC
II Regular Interest for all prior Distribution Dates, if any, over (ii) the
total amount of interest deemed distributed to REMIC III with respect to such
REMIC II Regular Interest on all such prior Distribution Dates, if any, pursuant
to Section 4.01(k).
(h) Solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal balance and
shall not bear interest.
SECTION 2.12. Conveyance of the REMIC II Regular Interests; Acceptance of
the REMIC II Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all of its
right, title and interest in and to the REMIC II Regular Interests to the
Trustee for the benefit of the REMIC III Regular Interest Certificateholders and
the Class R Certificateholders. The Trustee acknowledges the assignment to it of
the REMIC II Regular Interests and declares that it holds and will hold the same
in trust for the
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exclusive use and benefit of all present and future REMIC III
Regular Interest Certificateholders and Class R Certificateholders.
SECTION 2.13. Creation of REMIC III; Issuance of the REMIC III Regular
Interest Certificates and the REMIC III Residual Interest; Certain Matters
Involving REMIC III.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests to
the Trustee pursuant to Section 2.12 and in exchange therefor, the REMIC III
Residual Interest shall be issued, and the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, to or upon the order of
the Depositor, the REMIC III Regular Interest Certificates in authorized
denominations. There shall be 16 Classes of REMIC III Regular Interest
Certificates. The REMIC III Residual Interest shall not be certificated. The
interests evidenced by the REMIC III Regular Interest Certificates, together
with the REMIC III Residual Interest, shall collectively constitute the entire
beneficial ownership of REMIC III.
(c) The respective Classes of the REMIC III Regular Interest Certificates
shall constitute the "regular interests" (within the meaning of Section
860G(a)(1) of the Code), and the REMIC III Residual Interest shall constitute
the sole "residual interest" (within the meaning of Section 860(G)(a)(2) of the
Code), in REMIC III. None of the parties hereto, to the extent it is within the
control thereof, shall create or permit the creation of any other "interests" in
REMIC III (within the meaning of Treasury regulation section 1.860D-1(b)(1)).
(d) The designations for the respective classes of the REMIC III Regular
Interest Certificates are specified in Section 2.08.
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance. The following table sets forth for each Class of Principal
Balance Certificates the initial Class Principal Balance thereof:
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CLASS INITIAL CLASS
DESIGNATION PRINCIPAL BALANCE
----------- -----------------
Class A-1A $ 96,065,000
Class A-1B $566,400,000
Class A-2 $ 44,312,000
Class A-3 $ 37,665,000
Class A-4 $ 13,294,000
Class B-1 $ 31,018,000
Class B-2 $ 11,078,000
Class B-3 $ 31,019,000
Class B-4 $ 8,862,000
Class B-5 $ 2,216,000
Class B-6 $ 6,647,000
Class B-7 $ 8,862,000
Class B-8 $ 8,863,000
Class C $ 15,952,000
Class D $ 3,988,440
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be permanently reduced by any distributions
of principal made with respect to such Class of Certificates on such
Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), as applicable,
and, further, by any Unfunded Principal Balance Reduction made with respect to
such Class of Certificates on such Distribution Date pursuant to Section
4.04(a). Except as provided in the preceding sentence, the Class Principal
Balance of each Class of Principal Balance Certificates shall not otherwise be
increased or reduced. Distributions to the Holders of any such Class of
Principal Balance Certificates in reimbursement of any Unfunded Principal
Balance Reductions with respect to such Class of Certificates shall not
constitute distributions of principal and shall not result in any reduction of
the related Class Principal Balance.
The Class S Certificates shall not have a principal balance. For purposes
of accruing interest, however, the Class S Certificates shall have a Class
Notional Amount that is, as of any date of determination, equal to the total of
the then Uncertificated Principal Balances of all the REMIC II Regular
Interests.
(f) Each Class of REMIC III Regular Interest Certificates shall have a
Pass-Through Rate.
With respect to each Class of Principal Balance Certificates (other than
the Class A-4, Class B-1 and Class B-2 Certificates), the related Pass-Through
Rates for each Interest Accrual Period shall be fixed as set forth below.
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CLASS FIXED PASS-THROUGH RATE
----- -----------------------
Class A-1A 7.450% per annum
Class A-1B 7.620% per annum
Class A-2 7.760% per annum
Class A-3 7.920% per annum
Class B-3 6.998% per annum
Class B-4 6.998% per annum
Class B-5 6.998% per annum
Class B-6 6.998% per annum
Class B-7 6.998% per annum
Class B-8 6.998% per annum
Class C 6.998% per annum
Class D 6.998% per annum
With respect to the Class A-4 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of
REMIC II Regular Interest A-4 and (ii) 8.020% per annum.
With respect to the Class B-1 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of
REMIC II Regular Interest B-1 and (ii) 8.490% per annum.
With respect to the Class B-2 Certificates, the related Pass-Through Rate
for each Interest Accrual Period shall equal the lesser of (i) the REMIC II
Remittance Rate in effect during such Interest Accrual Period in respect of
REMIC II Regular Interest B-2 and (ii) 8.330% per annum.
With respect to the Class S Certificates, the related Pass-Through Rate for
each Interest Accrual Period shall equal the excess, if any, of (i) the weighted
average of the respective REMIC II Remittance Rates in effect during such
Interest Accrual Period in respect of all of the REMIC II Regular Interests,
over (ii) the weighted average of the respective Adjusted REMIC II Remittance
Rates in effect during such Interest Accrual Period in respect of all of the
REMIC II Regular Interests. For purposes of the foregoing, the relevant
weighting shall be based on the Uncertificated Principal Balance of each REMIC
II Regular Interest immediately prior to the related Distribution Date.
(g) Each Class of REMIC III Regular Interest Certificates shall bear
interest, and such interest shall commence accruing on the Cut-off Date. In the
case of each Class of REMIC III Regular Interest Certificates, such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
shall accrue at the Pass-Through Rate with respect to such Class of Certificates
for such Interest Accrual Period on the Class Principal Balance (or, in the case
of the Class S Certificates, the Class Notional Amount) of such Class of
Certificates outstanding immediately prior to the related Distribution Date. The
total amount of such interest accrued with respect to each Class of REMIC III
Regular Interest Certificates during each Interest Accrual Period (herein
referred to as the "Interest Accrual Amount" with respect to such Class of
Certificates for such Interest Accrual Period) shall equal 1/12 of the product
of (i) the Pass-Through Rate with respect to such Class of Certificates for such
Interest Accrual Period, multiplied by (ii) the Class Principal Balance (or, in
the case of the Class S Certificates, the Class Notional Amount) of such Class
of Certificates outstanding immediately prior to the related Distribution Date.
The portion of the Interest Accrual Amount with respect to any Class of
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REMIC III Regular Interest Certificates for any Interest Accrual Period that
shall be distributable to the Holders thereof on the related Distribution Date
pursuant to Section 4.01(a) or Section 4.01(b), as applicable, shall be an
amount (herein referred to as the "Current Interest Distribution Amount" with
respect to such Class of Certificates for the related Distribution Date) equal
to (i) the Interest Accrual Amount with respect to such Class of Certificates
for the related Interest Accrual Period, reduced (to not less than zero) by (ii)
the portion of any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date that is allocable to such Class of Certificates. For purposes
of the foregoing, the Net Aggregate Prepayment Interest Shortfall, if any, for
each Distribution Date shall be allocated among all the Classes of REMIC III
Regular Interest Certificates on a pro rata basis in accordance with their
respective Interest Accrual Amounts for the related Interest Accrual Period. If
the entire Current Interest Distribution Amount with respect to any Class of
REMIC III Regular Interest Certificates for any Distribution Date is not
distributed to the Holders thereof on such Distribution Date pursuant to Section
4.01(a) or Section 4.01(b), as applicable, then the unpaid portion of such
Current Interest Distribution Amount shall be added to, and be payable as part
of, the Carryforward Interest Distribution Amount with respect to such Class of
Certificates for future Distribution Dates. The "Carryforward Interest
Distribution Amount" with respect to any Class of REMIC III Regular Interest
Certificates for any Distribution Date is the excess, if any, of (i) all Current
Interest Distribution Amounts with respect to such Class of Certificates for all
prior Distribution Dates, if any, over (ii) the total amount of interest
distributed to the Holders of such Class of Certificates on all such prior
Distribution Dates, if any, pursuant to Section 4.01(a) or Section 4.01(b), as
applicable.
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of REMIC
III Regular Interest Certificates shall be the Rated Final Distribution Date.
(i) The REMIC III Residual Interest shall not have a principal balance and
shall not bear interest.
SECTION 2.14. Acceptance of Grantor Trusts by Trustee; Issuance of the
Class E and Class R Certificates.
(a) It is the intention of the parties hereto that the segregated pool of
assets consisting of any collections of Post-ARD Additional Interest received on
the ARD Loans constitute a Grantor Trust for federal income tax purposes and,
further, that such segregated pool of assets be designated as "Grantor Trust E".
The Trustee, by its execution and delivery hereof, acknowledges the assignment
to it of the assets of Grantor Trust E and declares that it will hold such
assets in trust for the exclusive use and benefit of all present and future
Holders of the Class E Certificates. Concurrently with the assignment to it of
the assets included in Grantor Trust E, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, to or upon the order of
the Depositor, the Class E Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust E. The rights of the Holders of
the Class E Certificates to receive distributions from the proceeds of Grantor
Trust E, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest, the REMIC II Residual Interest and the REMIC III Residual Interest to
the Trustee for the benefit of the Holders of the Class R Certificates. It is
the
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intention of the parties hereto that the segregated pool of assets consisting of
the REMIC I Residual Interest, the REMIC II Residual Interest and the REMIC III
Residual Interest constitute a Grantor Trust for federal income tax purposes
and, further, that such segregated pool of assets be designated as "Grantor
Trust R". The Trustee, by its execution and delivery hereof, acknowledges the
assignment to it of the assets of Grantor Trust R and declares that it will hold
such assets in trust for the exclusive use and benefit of all present and future
Holders of the Class R Certificates. Concurrently with the assignment to it of
the assets included in Grantor Trust R, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, to or upon the order of
the Depositor, the Class R Certificates in authorized denominations evidencing
the entire beneficial ownership of Grantor Trust R. The rights of the Holders of
the Class R Certificates to receive distributions from the proceeds of Grantor
Trust R, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans and any REO Properties that it is obligated to
service and administer pursuant to this Agreement, for the benefit of the
Certificateholders (as a collective whole), in accordance with: (i) any and all
applicable laws; (ii) the express terms of this Agreement and the respective
Mortgage Loans; and (iii) to the extent consistent with the foregoing, the
Servicing Standard. The Master Servicer or Special Servicer, as applicable in
accordance with this Agreement, shall service and administer each
Cross-Collateralized Group as a single Mortgage Loan as and when necessary and
appropriate consistent with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Performing Mortgage Loans, and (ii) the Special Servicer
shall service and administer (x) each Mortgage Loan as to which a Servicing
Transfer Event has occurred and is continuing, and (y) each REO Property;
provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Mortgage Loans) and, further, to render such incidental services
with respect to any Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein. The Master Servicer shall not, on behalf of
the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Mortgage
Loans it is obligated to service hereunder, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and other related collateral; and (ii) any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments. In addition, without
limiting the generality of the foregoing, each of the Master Servicer and
Special Servicer is authorized and empowered by the Trustee to execute and
deliver, in accordance with the Servicing Standard and subject to Sections 3.08
and 3.20, any and all assumptions, modifications, waivers, substitutions,
extensions, amendments or consents to or with respect to any documents contained
in the related Mortgage File. Subject to Section 3.10, the Trustee shall, at the
written request of a Servicing Officer of the Master Servicer or the Special
Servicer, furnish, or cause to be so furnished, to the Master Servicer or the
Special Servicer, as appropriate, any limited powers of attorney and other
documents (each of which shall be prepared by the Master Servicer or Special
Servicer, as applicable) necessary or appropriate to enable it to carry out its
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any misuse of any such power of attorney by
the Master Servicer or the Special Servicer.
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(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The Master Servicer and the Special Servicer shall each undertake
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder and shall
follow such collection procedures as are consistent with the Servicing Standard;
provided, however, that neither the Master Servicer nor the Special Servicer
shall, with respect to any ARD Loan after its Anticipated Repayment Date, take
any enforcement action with respect to the payment of Post-ARD Additional
Interest (other than the making of requests for its collection), unless (i) the
taking of an enforcement action with respect to the payment of other amounts due
under such Mortgage Loan is, in the good faith and reasonable judgment of the
Special Servicer, and without regard to such Post-ARD Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such Mortgage Loan have been paid, the payment of such
Post-ARD Additional Interest has not been forgiven in accordance with Section
3.20 and, in the good faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. Consistent with the
foregoing, the Master Servicer (as to Performing Mortgage Loans) and the Special
Servicer (as to Specially Serviced Mortgage Loans) each may waive any Default
Charges in connection with any specific delinquent payment on a Mortgage Loan it
is obligated to service hereunder.
(b) At least ninety days prior to the maturity date of each Balloon
Mortgage Loan, the Master Servicer shall send a notice to the related Borrower
of such maturity date (with a copy to be sent to the Special Servicer) and shall
request confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), in which all Escrow Payments received by it with
respect to the Mortgage Loans shall be deposited and retained. Subject to any
terms of the related Mortgage Loan documents that specify the nature of the
account in which Escrow Payments shall be held, each Servicing Account shall be
an Eligible Account. Withdrawals of amounts so collected in respect of any
Mortgage Loan (and interest earned thereon) from a Servicing Account may be made
only: (i) to effect the payment of real estate taxes, assessments, insurance
premiums (including, without limitation, premiums on any Environmental Insurance
Policy), ground rents (if applicable) and comparable items in respect of the
related Mortgaged Property; (ii) to reimburse the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent, as applicable, for any unreimbursed
Servicing Advances made thereby to cover any of the items described in the
immediately preceding clause (i); (iii) to refund to the related Borrower any
sums as may be determined to be overages; (iv) to pay interest or other income,
if required and as described below, to the related Borrower on balances in the
Servicing Account (or, if and to the extent not payable to the related Borrower
to pay such interest or other income (up to the amount of any Net Investment
Earnings in respect of such Servicing Account for each Collection Period) to the
Master Servicer); or (v) to clear and terminate the Servicing Account at the
termination of this Agreement in
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accordance with Section 9.01. The Master Servicer shall pay or cause to be paid
to the Borrowers interest and other income, if any, earned on the investment of
funds in Servicing Accounts maintained thereby, if and to the extent required by
law or the terms of the related Mortgage Loan. If the Master Servicer shall
deposit in a Servicing Account any amount not required to be deposited therein,
it may at any time withdraw such amount from such Servicing Account, any
provision herein to the contrary notwithstanding. Promptly after any Escrow
Payments are received by the Special Servicer from any Borrower, and in any
event within two Business Days after any such receipt, the Special Servicer
shall remit such Escrow Payments to the Master Servicer for deposit in the
applicable Servicing Account(s).
(b) The Master Servicer shall as to each Mortgage Loan (including each
Specially Serviced Mortgage Loan) (i) maintain accurate records with respect to
the related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan documents; provided, however, that if such Mortgage Loan does not
require the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the Master Servicer and the Special Servicer shall, as to those Mortgage
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, enforce the requirement of the related Mortgage
that the Borrower make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard, the Master Servicer shall
make a Servicing Advance with respect to each Mortgaged Property (including each
Mortgaged Property relating to a Specially Serviced Mortgage Loan) all such
funds as are necessary for the purpose of effecting the timely payment of (i)
real estate taxes, assessments and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies (including, without
limitation, premiums on any Environmental Insurance Policy), in each instance
prior to the applicable penalty or termination date if and to the extent that
(x) Escrow Payments (if any) collected from the related Borrower are
insufficient to pay such item when due, and (y) the related Borrower has failed
to pay such item on a timely basis; provided, that, in the case of amounts
described in the preceding clause (i), the Master Servicer shall not make a
Servicing Advance of any such amount if the Master Servicer reasonably
anticipates (in accordance with the Servicing Standard) that such amounts will
be paid by the related Borrower on or before the applicable penalty date, in
which case the Master Servicer shall use its best efforts consistent with the
Servicing Standard to confirm whether such amounts have been paid and shall make
a Servicing Advance of such amounts on the earlier of (A) the date that is five
Business Days following receipt by the Master Servicer of confirmation that such
amounts have not been paid and (B) 90 days after the applicable penalty date. In
no event shall the Master Servicer be required to make any Servicing Advance
under this Section 3.03(c) to the extent such advance would, if made, constitute
a Non-recoverable Servicing Advance. All such Advances shall be reimbursable in
the first instance from related collections from the Borrowers and further as
provided in Section 3.05(a). No costs incurred by the Master Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of such Mortgaged Properties shall, for purposes
hereof, including calculating monthly distributions to Certificateholders, be
added to the respective unpaid principal balances or Stated Principal Balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit; provided, however, that this sentence shall not be construed to
limit the
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rights of the Master Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
(d) The Master Servicer shall establish and maintain, as applicable, one or
more accounts (the "Reserve Accounts"), in which all Reserve Funds, if any,
shall be deposited and retained. As and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, the Master Servicer
may make withdrawals of amounts so deposited, and draws under any Letter of
Credit delivered in lieu of Reserve Funds, to pay for, or to reimburse the
related Borrower in connection with, the costs associated with the related
tenant improvements, leasing commissions, repairs, replacements, capital
improvements and/or environmental testing and remediation, litigation and/or
other special expenses at or with respect to the related Mortgaged Property for
which such Reserve Funds were intended or such Letter of Credit was delivered
and, in the case of a Reserve Fund constituting debt service reserve accounts,
to apply amounts on deposit therein in respect of principal and interest on the
related Mortgage Loan. In addition, as and to the extent consistent with the
Servicing Standard and the related Mortgage Loan documents, the Master Servicer
may make withdrawals of amounts so deposited, and draws under any Letter of
Credit so delivered, to prepay the Mortgage Loan in the event certain leasing or
other economic criteria are not satisfied at the related Mortgaged Property, or
to release such amounts to the related Borrower or otherwise apply such amounts
for any other appropriate purpose in the event that such criteria are satisfied,
and the Master Servicer may return any Letter of Credit so delivered to the
related Borrower; provided that the Master Servicer shall not release any
Reserve Funds, or return any Letter of Credit delivered in lieu of Reserve
Funds. to the related Borrower, unless and until: (i) the Master Servicer has so
notified the Special Servicer in writing and has provided the Special Servicer
with any written or electronic information in the Master Servicer's possession
regarding such Mortgage Loan or the related Mortgaged Property and a written
recommendation and rationale therefor, that the Special Servicer may reasonably
request within ten Business Days of receiving such written notice; and (ii) the
Special Servicer has consented to such release of any Reserve Funds or return of
any Letter of Credit (such consent to be given or withheld in accordance with
the Servicing Standard and to be deemed given if the Special Servicer does not
object in writing to such release of any Reserve Funds or return of any Letter
of Credit within ten Business Days after receiving such additional information
from the Master Servicer (or, if it did not request additional information,
within ten Business Days after receiving such notice)). Subject to the terms of
the related Mortgage Loan documents, each Reserve Account shall be an Eligible
Account. Interest and other income, if any, earned on funds on deposit in any
Reserve Account held by the Master Servicer (to the extent of any Net Investment
Earnings with respect to such Reserve Account for any Collection Period), shall
be for the benefit of and payable to the Master Servicer, unless otherwise
required to be paid to the related Borrower by law or the terms of the related
Mortgage Loan. Any out-of-pocket expenses incurred by the Master Servicer to
enable the Master Servicer to make any draw under any Letter of Credit shall
constitute a Servicing Advance, and the Master Servicer shall make reasonable
efforts to recover such expenses from the related Borrower to the extent the
Borrower is required to pay such expenses under the terms of the related
Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Borrower 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 other
action or remediation with respect to environmental matters is required to have
been taken or completed pursuant to the terms of the related Mortgage Loan
documents, the Master Servicer shall request from the Borrower written
confirmation of such action and remediations within a reasonable time after the
later
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of the Closing Date and the date as of which such action or remediations are
required to have been taken or completed. To the extent that a Borrower shall
fail to promptly respond to any inquiry described in this Section 3.03(e), the
Master Servicer shall notify the Trustee, the Special Servicer and the
Controlling Class Representative. The Master Servicer shall promptly notify the
Trustee, the Special Servicer and the Controlling Class Representative if the
Master Servicer shall determine that any Borrower has failed to perform its
obligations under the related Mortgage Loan in respect of environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage Loan
documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
SECTION 3.04. Collection Account, Distribution Account, Interest Reserve
Account and Excess Liquidation Proceeds Account.
(a) The Master Servicer shall segregate and hold all funds collected and
received in connection with the Mortgage Pool separate and apart from its own
funds and general assets. In connection therewith, the Master Servicer shall
establish and maintain one or more segregated accounts (collectively, the
"Collection Account"), in which the funds described below are to be deposited
and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Collection Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Collection Account, within one Business Day of receipt (in the
case of payments by Borrowers or other collections on the Mortgage Loans) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of the Master Servicer in respect of the Mortgage Pool
subsequent to the Closing Date (other than in respect of scheduled payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date (or, in the case of a Replacement Mortgage Loan, on or before the
related date of substitution), which payments shall be delivered promptly to the
Mortgage Loan Seller or its designee, with negotiable instruments endorsed as
necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans,
including Default Interest and Post-ARD Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Collection Account;
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(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master force place
hazard policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c);
(viii) any amounts required to be transferred from any Special Reserve
Account pursuant to Section 2.03(e); and
(ix) insofar as they do not constitute Escrow Payments, any amounts
paid by a Borrower specifically to cover items for which a Servicing
Advance has been made.
The foregoing requirements for deposit in the Collection Account shall be
exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, earnout fees, extension fees, modification fees, charges for
beneficiary statements or demands and amounts collected for checks returned for
insufficient funds, need not be deposited by the Master Servicer in the
Collection Account. The Master Servicer shall promptly deliver to the Special
Servicer any of the foregoing items received by it, if and to the extent that
such items constitute Additional Special Servicing Compensation. If the Master
Servicer shall deposit in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through (iv)
and (viii) of the first paragraph of this Section 3.04(a) with respect to any
Mortgage Loan, the Special Servicer shall promptly, but in no event later than
one Business Day after receipt, remit such amounts to the Master Servicer for
deposit into the Collection Account, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement. With respect to any such amounts
paid by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer (in its capacity as
such), without recourse, representation or warranty, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
cannot be so endorsed and delivered because of a restrictive endorsement. Any
such amounts received by the Special Servicer with respect to an REO Property
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Collection Account pursuant to Section
3.16(c).
(b) The Trustee shall establish and maintain one or more segregated
accounts (collectively, the "Distribution Account"), to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Trustee shall, as a
bookkeeping matter, establish and maintain two sub-accounts of the Distribution
Account (i) one of which sub-accounts (such sub-account, the "REMIC
Sub-Account") shall be deemed to be held in trust for the benefit of the Holders
of the REMIC III Regular Interest Certificates and the Class R Certificates and
(ii) one of which sub-accounts (such sub-account, the "Class E Sub-Account")
shall be deemed to be held in trust for the benefit of the Holders of the Class
E Certificates. By 2:00 p.m. (New York City time) on each Master Servicer
Remittance Date, the Master Servicer shall deliver to the Trustee, for deposit
in the Distribution Account, an aggregate amount of immediately available funds
equal to the Master Servicer Remittance Amount for such Master Servicer
Remittance Date. Immediately upon
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deposit of the Master Servicer Remittance Amount for any Master Servicer
Remittance Date into the Distribution Account, any portion thereof that
represents any Post-ARD Additional Interest related to the ARD Loans shall be
deemed to have been deposited into the Class E Sub-Account, and the remaining
portion thereof shall be deemed to have been deposited into the REMIC
Sub-Account. In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account any
P&I Advances and Compensating Interest Payments required to be made by the
Master Servicer hereunder. Furthermore, any amounts paid by any party hereto to
indemnify the Trust Fund pursuant to any provision hereof shall be delivered to
the Trustee for deposit in the Distribution Account. The Trustee shall, upon
receipt, deposit in the Distribution Account any and all amounts received or,
pursuant to Section 4.03, advanced by the Trustee or any Fiscal Agent that are
required by the terms of this Agreement to be deposited therein. As and when
required pursuant to Section 3.05(c), the Trustee shall transfer Interest
Reserve Amounts in respect of the Interest Reserve Loans from the Interest
Reserve Account to the Distribution Account. Furthermore, as and when required
pursuant to Section 3.05(d), the Trustee shall transfer monies from the Excess
Liquidation Proceeds Account to the Distribution Account. If the Trustee shall
deposit in the Distribution Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Distribution Account,
any provision herein to the contrary notwithstanding.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2001, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date.
(d) If any Excess Liquidation Proceeds are received, the Trustee shall
establish and maintain one or more accounts (collectively, the "Excess
Liquidation Proceeds Account") to be held in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Collection Account
and remit to the Trustee for deposit in the Excess Liquidation Proceeds Account
all Excess Liquidation Proceeds received during the Collection Period ending on
the Determination Date immediately prior to such Master Servicer Remittance
Date.
(e) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account shall remain uninvested. The Master Servicer shall give notice
to the other parties hereto of the location of the Collection Account as of the
Closing Date and of the new location of the Collection Account prior to any
change thereof. The Distribution Account, Interest Reserve Account and Excess
Liquidation Proceeds Account shall each be established at the Corporate Trust
Office of the Trustee as of the Closing Date, and the Trustee shall give notice
to the other parties hereto of the new location of each of the Distribution
Account, Interest Reserve Account and Excess Liquidation Proceeds Account prior
to any change thereof.
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SECTION 3.05. Permitted Withdrawals From the Collection Account, the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the Master Servicer Remittance Amount for each Master Servicer Remittance
Date and any amounts that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for unreimbursed P&I Advances made thereby (in each case, with
its own funds), the Master Servicer's, the Trustee's and any Fiscal
Agent's, as the case may be, respective rights to reimbursement pursuant to
this clause (ii) with respect to any P&I Advance (other than Nonrecoverable
P&I Advances, which are reimbursable pursuant to clause (vii) below) being
limited to amounts that represent Late Collections of interest and
principal received in respect of the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance was made (net of related Master
Servicing Fees and/or Workout Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Mortgage Loan, the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any Mortgage
Loan or REO Mortgage Loan being limited to amounts received on or in
respect of such Mortgage Loan (whether in the form of payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds) or such REO
Mortgage Loan (whether in the form of REO Revenues, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds) that are allocable as
interest thereon;
(iv) to pay to the Special Servicer, out of general collections on the
Mortgage Loans and any REO Properties, earned and unpaid Special Servicing
Fees in respect of each Specially Serviced Mortgage Loan and REO Mortgage
Loan;
(v) to pay the Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is
entitled pursuant to, and from the sources contemplated by, the second and
third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds), the Master Servicer's, the
Special Servicer's, the Trustee's and any Fiscal Agent's, as the case may
be, respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance (other than Nonrecoverable Servicing
Advances, which are reimbursable pursuant to clause (vii) below) being
limited to (A) payments made by the related Borrower that are allocable to
cover the item in respect of which such Servicing Advance was made, and (B)
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if
applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property as to which such Servicing Advance was made;
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(vii) to reimburse itself, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, out of general collections on the Mortgage
Loans and any REO Properties, for any unreimbursed Advances made thereby
that have been determined to be Nonrecoverable Advances;
(viii) to pay itself, the Special Servicer, the Trustee or any Fiscal
Agent, as applicable, any Advance Interest then due and owing to such
Person, the Master Servicer's, the Special Servicer's, the Trustee's and
any Fiscal Agent's, as the case may be, out of Default Charges collected on
the Mortgage Loan or REO Mortgage Loan, as the case may be, as to which the
related Advance was made, as and to the extent contemplated by Section
3.26;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above or pursuant to Section
3.03(c), and insofar as payment has not already been made, and the related
Default Charges then on deposit in the Collection Account are not
sufficient to make such payment pursuant to clause (viii) above, to pay
itself, the Special Servicer, the Trustee or such Fiscal Agent, as the case
may be, out of general collections on the Mortgage Loans and any REO
Properties, any related Advance Interest accrued and payable on the portion
of such Advance so reimbursed or being reimbursed;
(x) to pay any unpaid Additional Trust Fund Expense (other than
Advance Interest, which is payable pursuant to clause (viii) above, and
other than Special Servicing Fees, Liquidation Fees and Workout Fees) out
of Default Charges collected on the Mortgage Loan or REO Mortgage Loan as
to which such expense was incurred, as and to the extent contemplated by
Section 3.26;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in the Collection
Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect to
any Mortgage Loan or REO Property, such payments to be made, first, out of
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if
applicable, REO Revenues received in respect of such Mortgage Loan or REO
Property, as the case may be, and then, out of general collections on other
Mortgage Loans and REO Properties;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties, certain servicing
expenses that would, if advanced, constitute Nonrecoverable Servicing
Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and any
REO Properties, costs and expenses incurred by the Trust Fund pursuant to
Section 3.09(c) (other than the costs of environmental testing, which are
to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Tax Administrator, the
Depositor, the Trustee, any Fiscal Agent, or any of their respective
directors, officers, members, managers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and
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any REO Properties, any amounts payable to any such Person pursuant to
Section 6.03, Section 7.01(b), Section 8.05(b), Section 8.13 or Section
10.03, as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for (A) the cost of the Opinion of Counsel contemplated by
Section 11.02(a), and (B) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, any expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Tax Administrator pursuant to
Section 3.17(a)(iii) in connection with providing advice to the Special
Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent, the Tax Administrator or the Depositor, as the
case may be, any amount specifically required to be paid to such Person at
the expense of the Trust Fund under any provision of this Agreement to
which reference is not made in any other clause of this Section 3.05(a), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xix) to pay itself, the Special Servicer, the Mortgage Loan Seller,
Union Capital, a Controlling Class Certificateholder or any other
particular Person, as the case may be, with respect to each Mortgage Loan,
if any, previously purchased or otherwise removed from the Trust Fund by
such Person pursuant to or as contemplated by this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds to the Excess Liquidation
Proceeds Account in accordance with Section 3.04(d); and
(xxi) to clear and terminate the Collection Account at the termination
of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular time
(after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xix),
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (y) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (z) if the payment, reimbursement or remittance can be made from any funds
on deposit in the Collection Account, then (following any withdrawals made from
the Collection Account in accordance with the immediately preceding clause (y)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds; provided that
any reimbursements of Advances in respect of any particular Mortgage Loan or REO
Property out of the Collection Account pursuant to any of clauses (ii), (vi) and
(vii) above, and any payments of interest thereon out of the Collection Account
pursuant to either of clauses (viii) and (ix) above, shall be made (to the
extent of their respective entitlements to
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such reimbursements and/or payments): first, to any Fiscal Agent; second, to the
Trustee; and third, pro rata, to the Master Servicer and Special Servicer.
The Master Servicer shall keep and maintain separate accounting records, on
a loan-by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Collection Account pursuant to any of clauses (ii)
through (xix) above.
The Master Servicer shall pay to the Special Servicer from the Collection
Account amounts permitted to be paid to it therefrom promptly upon receipt of a
certificate of a Servicing Officer of the Special Servicer describing the item
and amount to which the Special Servicer is entitled. The Master Servicer may
rely conclusively on any such certificate and shall have no duty to re-calculate
the amounts stated therein. The Special Servicer shall keep and maintain
separate accounting for each Specially Serviced Mortgage Loan and REO Property,
on a loan-by-loan and property-by-property basis, for the purpose of justifying
any request for withdrawal from the Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any such
Person pursuant to Section 8.05, including the Trustee's Fee;
(iii) to pay the Tax Administrator, any Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person pursuant to Sections
8.05(b), 8.13(a) and/or 10.03;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Trustee which amendment is
in furtherance of the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
(vi) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2001), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar
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month as the Final Distribution Date, the Trustee shall withdraw from the
Interest Reserve Account and deposit in the Distribution Account all Interest
Reserve Amounts in respect of the Interest Reserve Loans then on deposit in the
Interest Reserve Account.
(d) On the Business Day prior to each Distribution Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Distribution Account, for distribution on such Distribution Date, an amount
equal to the lesser of (i) the entire amount, if any, then on deposit in the
Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable on such Distribution Date pursuant to Sections
4.01(a) and 4.01(b), over the Standard Available Distribution Amount for such
Distribution Date (calculated without regard to such transfer from the Excess
Liquidation Proceeds Account to the Distribution Account); provided that on the
Business Day prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Distribution
Account, for distribution on such Distribution Date, any and all amounts then on
deposit in the Excess Liquidation Proceeds Account.
(e) The Trustee, any Fiscal Agent, the Depositor, the Master Servicer and
the Special Servicer, as applicable, shall in all cases have a right prior to
the Certificateholders to any particular funds on deposit in the Collection
Account and the Distribution Account from time to time for the reimbursement or
payment of compensation, Advances (with interest thereon at the Reimbursement
Rate) and their respective expenses hereunder, but only if and to the extent
such compensation, Advances (with interest) and expenses are to be reimbursed or
paid from such particular funds on deposit in the Collection Account or the
Distribution Account pursuant to the express terms of this Agreement.
SECTION 3.06. Investment of Funds in the Collection Account, Servicing
Accounts, Reserve Accounts and the REO Account.
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depositary institution (including the Trustee) maintaining the
Collection Account, the Recording/Filing Reserve Account or any Servicing
Account or Reserve Account held by it, and the Special Servicer may direct
(pursuant to a standing order or otherwise) any depositary institution
maintaining the REO Account, to invest, or if it is such depositary institution,
may itself invest, the funds held therein (each such account, for purposes of
this Section 3.06, an "Investment Account") in (but only in) one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement or the related Mortgage Loan documents,
as applicable; provided that any such investment of funds in any Servicing
Account or Reserve Account shall be subject to applicable law and the terms of
the related Mortgage Loan documents; and provided, further, that the funds in
any Investment Account shall remain uninvested unless and until the Master
Servicer or Special Servicer, as applicable, gives timely investment
instructions with respect thereto pursuant to this Section 3.06. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Collection Account, the Servicing
Accounts and the Reserve Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Account), acting on behalf of the
Trustee, shall (and Trustee hereby designates the Master Servicer and the
Special Servicer, as applicable, as the Person that shall) (i) be the
"entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted
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Investment that is either a "certificated security" or an "uncertificated
security". For purposes of this Section 3.06(a), the terms "entitlement holder",
"security entitlement", "control", "certificated security" and "uncertificated
security" shall have the meanings given such terms in Revised Article 8 (1994
Revision) of the UCC, and "control" of any Permitted Investment by the Master
Servicer or the Special Servicer shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC. If amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Master Servicer (in the case of the Collection Account, the Recording/Filing
Reserve Account or any Servicing Account or Reserve Account) or the Special
Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount at least equal to the lesser of (1)
all amounts then payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of funds in
the Collection Account or the Recording/Filing Reserve Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Master Servicer and
shall be subject to its withdrawal in accordance with Section 3.05(a). Whether
or not the Master Servicer directs the investment of funds in any Servicing
Account or Reserve Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period and, further, if and to the
extent not required to be paid to the related Borrower pursuant to applicable
law or the terms of the related Mortgage Loan, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to withdrawal from
time to time in accordance with Section 3.03. Whether or not the Special
Servicer directs the investment of funds in the REO Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(b). If any
loss shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account (other than a loss of what would otherwise have constituted
investment earnings), the Master Servicer (in the case of the Collection
Account, the Recording/Filing Reserve Account and any Servicing Account or
Reserve Account) and the Special Servicer (in the case of the REO Account) shall
promptly deposit therein from its own funds, without right of reimbursement, no
later than the end of the Collection Period during which such loss was incurred,
the amount of the Net Investment Loss, if any, in respect of such Investment
Account for such Collection Period (or, in the case of a Servicing Account or
Reserve Account, the entire amount of such loss), except (in the case of any
such loss with respect to a Servicing Account or Reserve Account) to the extent
the loss amounts were invested for the benefit of a Borrower under the terms of
a Mortgage Loan or applicable law and such Borrower has no recourse against the
Trust in respect of such loss.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment,
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and if the Master Servicer (if such default is in respect of a Permitted
Investment of funds in the Collection Account, the Recording/Filing Reserve
Account or in any Reserve Account or Servicing Account) or the Special Servicer
(if such default is in respect of a Permitted Investment of funds in the REO
Account), as applicable, is in default of its obligations under Section 3.06(b),
the Trustee may, and, subject to Section 8.02, upon the request of Holders of
Certificates entitled to not less than 25% of the Voting Rights allocated to any
Class of REMIC III Regular Interest Certificates, the Trustee shall, take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate legal proceedings. Any costs
incurred by the Trustee in taking any such action shall be reimbursed to it by
the Master Servicer if the default is in respect of a Permitted Investment of
funds in the Collection Account, the Recording/Filing Reserve Account or in any
Reserve Account or Servicing Account or by the Special Servicer if the default
is in respect of a Permitted Investment of funds in the REO Account. This
provision is in no way intended to limit any actions that the Master Servicer or
Special Servicer may take in this regard at its own expense.
(d) Amounts on deposit in the Distribution Account, the Interest Reserve
Account and the Excess Liquidation Proceeds Account shall remain uninvested.
(e) Notwithstanding the investment of funds held in any Investment Account,
for purposes of the calculations hereunder, including the calculation of the
Standard Available Distribution Amount and the Master Servicer Remittance
Amount, the amounts so invested shall be deemed to remain on deposit in such
Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) The Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause each Borrower to maintain, and, if the Borrower does
not so maintain, the Master Servicer will itself cause to be maintained, for
each Mortgaged Property (including each Mortgaged Property relating to any
Specially Serviced Mortgage Loan) all insurance coverage as is required under
the related Mortgage, to the extent such insurance can be required under
applicable law, is available at commercially reasonable rates and the Trustee as
mortgagee has an insurable interest; provided that if and to the extent that any
such Mortgage permits the holder thereof any discretion (by way of consent,
approval or otherwise) as to the insurance coverage that the related Borrower is
required to maintain, the Master Servicer shall exercise such discretion in a
manner consistent with the Servicing Standard, with a view towards requiring
insurance comparable to that required under other Mortgage Loans with express
provisions governing such matters and, in any event, business interruption or
rental loss insurance for at least 12 months; and provided, further, that, if
and to the extent that a Mortgage so permits, the related Borrower shall be
required to obtain the required insurance coverage from Qualified Insurers that,
in each case, have a financial strength or claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "A" from Fitch (if then rated by Fitch; and, if not then
rated by Fitch, "A:IX" or better from A.M. Best) and "A" from S&P (or in such
other form and amount or issued by an insurer with such other financial strength
or claims-paying ability as would not, as confirmed in writing by the relevant
Rating Agency, result in an Adverse Rating Event). Subject to Section 3.17(b),
the Special Servicer shall also cause to be maintained for each REO Property no
less insurance coverage (to the extent available at commercially reasonable
rates) than was previously required of the Borrower under the related Mortgage
and, at a minimum, (i) hazard insurance with a replacement cost rider, (ii)
business interruption or rental loss insurance for at least 12 months, and (iii)
commercial general liability insurance, in each case, in an amount customary for
the type and
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geographic location of such REO Property and consistent with the Servicing
Standard; provided that all such insurance shall be obtained from Qualified
Insurers that, in each case, shall have a financial strength or claims-paying
rating no lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A" from Fitch (if then rated by
Fitch; and, if not then rated by Fitch, "A:IX" or better from A.M. Best) and "A"
from S&P (or in such other form and amount or issued by an insurer with such
other financial strength or claims-paying ability as would not, as confirmed in
writing by the relevant Rating Agency, result in an Adverse Rating Event). All
such insurance policies shall contain (if they insure against loss to property)
a "standard" mortgagee clause, with loss payable to the Master Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans), or shall name the Trustee as the insured, with loss payable to
the Special Servicer on behalf of the Trustee (in the case of insurance
maintained in respect of REO Properties), and shall be issued by an insurer
authorized under applicable law to issue such insurance. Any amounts collected
by the Master Servicer or the Special Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Borrower, in
each case in accordance with the Servicing Standard) shall be deposited in the
Collection Account, subject to withdrawal pursuant to Section 3.05(a), in the
case of amounts received in respect of a Mortgage Loan, or in the REO Account,
subject to withdrawal pursuant to Section 3.16(c), in the case of amounts
received in respect of an REO Property. Any cost incurred by the Master Servicer
or the Special Servicer in maintaining any such insurance shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit; provided, however, that this sentence shall not limit
the rights of the Master Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force place policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer,
then, to the extent such policy (i) is obtained from a Qualified Insurer having
a financial strength or claims-paying rating no lower than "A" from Fitch (if
then rated by Fitch; and, if not then rated by Fitch, "A:IX" or better from A.M.
Best) and "A" from S&P or having such other financial strength or claims-paying
ability rating as would not, as confirmed in writing by the relevant Rating
Agency, result in an Adverse Rating Event, and (ii) provides protection
equivalent to the individual policies otherwise required, the Master Servicer or
the Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
related Mortgaged Properties or REO Properties, as applicable. Such policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
a hazard insurance policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses that would have been covered by
such an individual policy, promptly deposit into the Collection Account from its
own funds the amount not otherwise payable under the blanket or master force
place policy in connection with such loss or losses because of such deductible
clause to the extent that any such deductible exceeds the deductible limitation
that pertained to the related Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket or master force
place policy in a timely fashion in accordance with the terms of such policy.
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(c) On or before the Closing Date, with respect to each of the Mortgage
Loans, the Depositor shall notify the insurer under the related Environmental
Insurance Policy and take all other action necessary for the Trustee, on behalf
of the Certificateholders, to be an insured (and for the Master Servicer, on
behalf of the Trust, to make claims) under such Environmental Insurance Policy.
In the event that the Master Servicer has actual knowledge of any event (an
"Insured Environmental Event") giving rise to a claim under any Environmental
Insurance Policy in respect of any Mortgage Loan, the Master Servicer shall, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, timely make a claim thereunder with the appropriate insurer
and shall take such other actions in accordance with the Servicing Standard
which are necessary under such Environmental Insurance Policy in order to
realize the full value thereof for the benefit of the Certificateholders. Any
legal fees, premiums or other out-of-pocket costs incurred in accordance with
the Servicing Standard in connection with any such claim under an Environmental
Insurance Policy shall be paid by the Master Servicer and shall be reimbursable
to it as a Servicing Advance. With respect to each Environmental Insurance
Policy in respect of a Mortgage Loan, the Master Servicer shall review and
familiarize itself with the terms and conditions relating to enforcement of
claims and shall monitor the dates by which any claim must be made or any action
must be taken under such policy to realize the full value thereof for the
benefit of the Certificateholders in the event the Master Servicer has actual
knowledge of an Insured Environmental Event giving rise to a claim under such
policy.
In the event that the Master Servicer receives notice of any termination of
any Environmental Insurance Policy with respect to a Mortgage Loan, the Master
Servicer shall, within five Business Days after receipt of such notice, notify
the Special Servicer, the Controlling Class Representative, the Rating Agencies
and the Trustee of such termination in writing. Upon receipt of such notice, the
Master Servicer shall address such termination in accordance with Section
3.07(a). Any legal fees, premiums or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with a resolution of such
termination of an Environmental Insurance Policy shall be paid by the Master
Servicer and shall be reimbursable to it as a Servicing Advance.
(d) Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans or REO Properties exist as part of the Trust Fund) keep in force
with a Qualified Insurer having a financial strength or claims-paying rating no
lower than two rating categories below the highest rated Certificates
outstanding, and in any event no lower than "A" from Fitch (if then rated by
Fitch; and, if not then rated by Fitch, "A:IX" from A.M. Best) and "A" from S&P,
a fidelity bond in such form and amount as would permit it to be a qualified
Fannie Mae seller-servicer of multifamily mortgage loans (or in such other form
and amount or issued by an insurer with such other financial strength or
claims-paying ability rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency)). Each of the Master Servicer and the
Special Servicer shall be deemed to have complied with the foregoing provision
if an Affiliate thereof has such fidelity bond coverage and, by the terms of
such fidelity bond, the coverage afforded thereunder extends to the Master
Servicer or the Special Servicer, as the case may be. Such fidelity bond shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee.
Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep
in force with a Qualified Insurer having a financial strength or claims-paying
rating no lower
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than two rating categories below the highest rated Certificates outstanding, and
in any event no lower than "A" from Fitch (if then rated by Fitch; and, if not
then rated by Fitch, "A:IX" from A.M. Best) and "A" from S&P, a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its servicing obligations
hereunder, which policy or policies shall be in such form and amount as would
permit it to be a qualified Fannie Mae seller-servicer of multifamily mortgage
loans (or in such other form and amount or issued by an insurer with such other
financial strength or claims-paying rating as would not result in an Adverse
Rating Event with respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee by the relevant Rating Agency)). Each of the Master
Servicer and the Special Servicer shall be deemed to have complied with the
foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be. Any such errors
and omissions policy shall provide that it may not be canceled without ten days'
prior written notice to the Trustee.
SECTION 3.08. Enforcement of Alienation Clauses.
The Special Servicer (with respect to all Mortgage Loans), on behalf of the
Trustee as the mortgagee of record, shall evaluate any right to transfer and,
subject to Section 3.24, the Master Servicer (with respect to Mortgage Loans
other than Specially Serviced Mortgage Loans) and the Special Servicer (with
respect to Specially Serviced Mortgage Loans) shall enforce the restrictions
contained in any Mortgage on transfers or further encumbrances of the related
Mortgaged Property and on transfers of interests in the related Borrower, unless
the Special Servicer has determined, in its reasonable, good faith judgment,
that waiver of such restrictions would be in accordance with the Servicing
Standard; provided that the Master Servicer shall not waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause unless and until (i) it has so
notified the Special Servicer in writing of any requested waiver and provided
the Special Servicer with written and electronic information in the Master
Servicer's possession regarding the affected Mortgage Loan (such information to
include, without limitation, loan documents, recent correspondence, property
operating statements, borrower financial statements and the most recent
appraisal) within five Business Days of such request, provided that the Master
Servicer will diligently pursue additional information not in its possession
which is reasonably requested by the Special Servicer to complete its consent
underwriting, and (ii) the Special Servicer has consented to such action (such
consent to be given or withheld in accordance with the Servicing Standard and to
be deemed given if the Special Servicer does not respond in writing within ten
Business Days after receiving from the Master Servicer all requested information
needed to complete its consent underwriting); and provided, further, that
neither the Master Servicer nor the Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-encumbrance" clause until it has received written confirmation
from each Rating Agency that such action would not result in an Adverse Rating
Event with respect to any Class of Rated Certificates; and provided, further,
that neither the Master Servicer nor the Special Servicer shall waive any right
it has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" clause until it has received written confirmation from
each Rating Agency that such action would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, if such "due-on-sale" clause
involves any Mortgage Loan that, individually or together with all other
Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such
Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers
that are known to be affiliated with the Borrower under such Mortgage Loan,
either (i) represents one of the ten largest Mortgage Loans/groups of related
Mortgage Loans or (ii) has an unpaid principal balance equal to or greater than
the lesser of (A) $20,000,000 and (B) 5% of the then aggregate principal balance
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of the Mortgage Pool; and provided, further, that, subject to the related
Mortgage Loan documents and applicable law, neither the Master Servicer nor the
Special Servicer shall waive any right it has, or grant any consent it is
otherwise entitled to withhold, under any related "due-on-sale" or
"due-on-encumbrance" clause under any Mortgage Loan, or approve the assumption
of any Mortgage Loan, unless in any such case, all associated costs and expenses
are covered without any expense to the Trust; and provided, further, that
neither the Master Servicer nor the Special Servicer shall (to the extent that
it is within the control thereof to prohibit such event) consent to the transfer
of any Mortgaged Property which secures a Cross-Collateralized Group unless all
of the Mortgaged Properties securing such Cross-Collateralized Group are
transferred simultaneously by the respective Borrower. After having made any
determination to waive the Trust's rights under a "due-on-sale" or "due-on
encumbrance" clause, the Master Servicer or the Special Servicer, as
appropriate, shall deliver to the Trustee, each Rating Agency and the other such
party an Officer's Certificate setting forth the basis for such determination.
The Master Servicer and the Special Servicer shall each provide the other with
all such information as each may reasonably request in order to make such
determination.
In connection with any permitted assumption of a Mortgage Loan or waiver of
a "due-on-sale" or "due-on-encumbrance" clause, the Master Servicer (in the case
of a Performing Mortgage Loan) or the Special Servicer (in the case of a
Specially Serviced Mortgage Loan) shall prepare all documents necessary and
appropriate for such purposes and shall coordinate with the related Borrower for
the due execution and delivery of such documents.
If the Master Servicer or the Special Servicer collects an assumption fee
or an assumption application fee in connection with any transfer or proposed
transfer of any interest in a Borrower or a Mortgaged Property, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that transfer or proposed transfer that
are not otherwise paid by the related Borrower and that would otherwise be
payable or reimbursable out of the Trust Fund, including any Rating Agency fees
and expenses. Any remaining portion of such assumption fee (such remaining
portion, a "Net Assumption Fee") or of such assumption application fee (such
remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11. Neither the Master Servicer nor the Special
Servicer shall waive any assumption fee or assumption application fee, to the
extent it would constitute additional compensation for the other such party,
without the consent of such other party.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d) and 3.24, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Mortgage Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection) unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Post-ARD Additional Interest, also
necessary, appropriate and consistent with the Servicing Standard or (ii) all
other amounts due under such Mortgage Loan have been paid, the payment of such
Post-ARD Additional Interest has not been forgiven in accordance with Section
3.20 and, in the good faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Advance Interest. In connection with the
foregoing, in the event of a default under any Mortgage Loan or
Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the Special Servicer shall consult Independent counsel regarding the
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order and manner in which the Special Servicer should foreclose upon or
comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Special Servicer as a
Servicing Advance. In addition, all costs and expenses incurred in any such
proceedings shall be paid by, and reimbursable to, the Special Servicer as a
Servicing Advance. Nothing contained in this Section 3.09 shall be construed so
as to require the Special Servicer, on behalf of the Trust, to make a bid on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in excess
of the fair market value of such property, as determined by the Special Servicer
taking into account the factors described in Section 3.18(e) and the results of
any appraisal obtained pursuant to the following sentence or otherwise, all such
bids to be made in a manner consistent with the Servicing Standard. If and when
the Special Servicer deems it necessary in accordance with the Servicing
Standard for purposes of establishing the fair market value of any Mortgaged
Property securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Special Servicer on behalf of the Trust under
such circumstances, in such manner or pursuant to such terms as would (i) cause
such Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (unless the portion of such REO
Property that is not treated as "foreclosure property" and that is held by REMIC
I at any given time constitutes not more than a de minimis amount of the assets
of REMIC I within the meaning of Treasury regulation Section 1.860D-1(b)(3)(i)
and (ii)), or (ii) except as permitted by Section 3.17(a), subject the Trust to
the imposition of any federal income taxes under the Code. In addition, the
Special Servicer shall not acquire any personal property on behalf of the Trust
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 covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not result in an Adverse REMIC Event with respect to
any REMIC Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09, neither
the Master Servicer nor the Special Servicer shall, on behalf of the Trust,
obtain title to a Mortgaged Property by foreclosure, deed 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, could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, 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:
(i) the Special Servicer has previously determined in accordance with
the Servicing Standard, based on a Phase I Environmental Assessment (and
any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental Assessments
and performed during the 12-month period preceding any such acquisition of
title or other action, that the Mortgaged Property is in compliance with
applicable environmental laws
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and regulations and 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
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, and taking into account the coverage provided under
the related Environmental Insurance Policy, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to acquire
title to or possession of the Mortgaged Property and to take such remedial,
corrective and/or other further actions as are necessary to bring the
Mortgaged Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances and
conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by clause (i)
or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the Master Servicer and the
Controlling Class Representative, specifying all of the bases for such
determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (ii) of the preceding paragraph shall be payable out of
the Collection Account pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii) of the
first sentence of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master Servicer
and the Controlling Class Representative monthly in writing as to any actions
taken by the Special Servicer with respect to any Mortgaged Property as to which
neither of the conditions set forth in clauses (i) and (ii) of the first
sentence of Section 3.09(c) has been satisfied, in each case until the earliest
to occur of satisfaction of either of such conditions, release of the lien of
the related Mortgage on such Mortgaged Property and the related Mortgage Loan's
becoming a Corrected Mortgaged Loan.
(f) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of seeking to obtain a deficiency
judgment if the state in which the Mortgaged Property is located and the terms
of the Mortgage Loan permit such an action and shall, in accordance with the
Servicing Standard, seek such deficiency judgment if it deems advisable.
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(g) The Special Servicer shall prepare and file the information returns
with respect to the receipt of any mortgage interest received in a trade or
business from individuals, the reports of foreclosures and abandonments of any
Mortgaged Property and the information returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by Section
6050H, 6050J and 6050P of the Code and shall deliver to the Trustee and the Tax
Administrator an Officer's Certificate stating that such reports have been
filed. Such information returns and reports shall be in form and substance
sufficient to meet the reporting requirements imposed by Sections 6050H, 6050J
and 6050P of the Code. The Master Servicer shall promptly provide to the Special
Servicer on a timely basis all information in the Master Servicer's possession
to be included in such reports and information returns.
(h) As soon as the Special Servicer makes a Final Recovery Determination
with respect to any Mortgage Loan or REO Property, it shall promptly notify the
Trustee, the Master Servicer and the Controlling Class Representative. The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee and the Master Servicer no
later than the third Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall promptly so notify
the Trustee and request delivery to it or its designee of the related Mortgage
File (such notice and request to be effected by delivering to the Trustee a
Request for Release in the form of Exhibit D-1 attached hereto, which Request
for Release shall be accompanied by the form of any release or discharge to be
executed by the Trustee 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)
have been or will be so deposited). Upon receipt of such Request for Release,
the Trustee shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or its designee and shall
deliver to the Master Servicer or its designee such accompanying release or
discharge, duly executed. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), then, upon request
of the Master Servicer and receipt from the Master Servicer of a Request for
Release in the form of Exhibit D-1 attached hereto signed by a Servicing Officer
thereof, or upon request of the Special Servicer and receipt from the Special
Servicer of a Request for Release in the form of Exhibit D-2 attached hereto,
the Trustee shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be, or its designee. Upon return of such Mortgage File
(or portion thereof) to the Trustee or the related Custodian, or upon the
Special Servicer's delivery to the Trustee of an Officer's Certificate stating
that (i) such Mortgage Loan was liquidated and all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account pursuant to Section 3.04(a) have been or will be so
deposited or (ii) such Mortgage Loan has
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become an REO Property, a copy of the Request for Release shall be returned
by the Trustee to the Master Servicer or the Special Servicer, as
applicable.
(c) Within five Business Days of the Special Servicer's request therefor
(or, if the Special Servicer notifies the Trustee of an exigency, within such
shorter period as is reasonable under the circumstances), the Trustee shall
execute and deliver to the Special Servicer, in the form supplied to the Trustee
by the Special Servicer, any court pleadings, requests for trustee's sale or
other documents reasonably necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Borrower on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note or Mortgage or otherwise available at law or in equity or to
defend any legal action or counterclaim filed against the Trust, the Master
Servicer or the Special Servicer; provided that the Trustee may alternatively
execute and deliver to the Special Servicer, in the form supplied to the Trustee
by the Special Servicer, a limited power of attorney issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee (however, the
Trustee shall not be liable for any misuse of such power of attorney by the
Special Servicer). Together with such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee), the Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of 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. Master Servicing and Special Servicing Compensation; Interest
on and Reimbursement of Servicing Advances; Payment of Certain Expenses;
Obligations of the Trustee and any Fiscal Agent regarding Back-up Servicing
Advances.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to receive the Master Servicing Fee with respect to each Mortgage
Loan (including each Specially Serviced Mortgage Loan) and each REO Mortgage
Loan. As to each such Mortgage Loan and REO Mortgage Loan, for each calendar
month (commencing with June 2000) or any applicable portion thereof, the Master
Servicing Fee shall accrue (on a 30/360 Basis) at the related Master Servicing
Fee Rate on the same principal amount as interest accrues from time to time
during such calendar month (or portion thereof) on such Mortgage Loan or is
deemed to accrue from time to time during such calendar month (or portion
thereof) on such REO Mortgage Loan, as the case may be. The Master Servicing Fee
with respect to any Mortgage Loan or REO Mortgage Loan shall cease to accrue if
a Liquidation Event occurs in respect thereof. Master Servicing Fees earned with
respect to any Mortgage Loan or REO Mortgage Loan shall be payable monthly from
payments of interest on such Mortgage Loan or REO Revenues allocable as interest
on such REO Mortgage Loan, as the case may be. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Mortgage Loan out of the portion any related Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds allocable as interest on such
Mortgage Loan or REO Mortgage Loan, as the case may be.
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Midland and any holder of the Excess Servicing Fee Right shall be entitled,
at any time, at its own expense, to transfer, sell, pledge or otherwise assign
the Excess Servicing Fee Right in whole (but not in part) to any Qualified
Institutional Buyer or Institutional Accredited Investor (other than a Plan),
provided that no such transfer, sale, pledge or other assignment shall be made
unless (i) that transfer, sale, pledge or other assignment is exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws and is otherwise made in accordance with the
Securities Act and such state securities laws, (ii) the prospective transferor
shall have delivered to the Depositor a certificate substantially in the form
attached as Exhibit F-3A hereto, and (iii) the prospective transferee shall have
delivered to Midland and the Depositor a certificate substantially in the form
attached as Exhibit F-3B hereto. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Excess Servicing
Fee Right under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer, sale,
pledge or assignment of the Excess Servicing Fee Right without registration or
qualification. Midland, and each holder of the Excess Servicing Fee Right
desiring to effect a transfer, sale, pledge or other assignment of the Excess
Servicing Fee Right shall, and Midland hereby agrees, and each such holder of
the Excess Servicing Fee Right by its acceptance of the Excess Servicing Fee
Right shall be deemed to have agreed, in connection with any transfer of the
Excess Servicing Fee Right effected by such Person, to indemnify the Depositor,
the Underwriters, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer and the Tax Administrator against any liability that may result
if such transfer is not exempt from registration and/or qualification under the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws or in accordance with the foregoing
provisions of this paragraph. By its acceptance of the Excess Servicing Fee
Right, the holder thereof shall be deemed to have agreed (i) to keep all
information relating to the Trust and the Trust Fund and made available to it by
the Master Servicer confidential (except as permitted pursuant to clause (iii)
below), (ii) not to use or disclose such information in any manner that could
result in a violation of any provision of the Securities Act or that would
require registration of the Excess Servicing Fee Right or any Certificate
pursuant to the Securities Act, and (iii) not to disclose such information, and
to cause its officers, directors, partners employees, agents or representatives
not to disclose such information, in any manner whatsoever, in whole or in part,
to any other Person other than such holder's auditors, legal counsel and
regulators, except to the extent such disclosure is required by law, court order
or other legal requirement or to the extent such information is of public
knowledge at the time of disclosure by such holder or has become generally
available to the public other than as a result of disclosure by such holder;
provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing
such prospective acquisition and (y) agrees in writing to keep such information
confidential, not to use or disclose such information in any manner that could
result in a violation of any provision of the Securities Act or that would
require registration of the Excess Servicing Fee Right or any Certificates
pursuant to the Securities Act and not to disclose such information, and to
cause its officers, directors, partners, employees, agents or representatives
not to disclose such information, in any manner whatsoever, in whole or in part,
to any other Person other than such Persons' auditors, legal counsel and
regulators. From time to time following any transfer, sale, pledge or assignment
of the Excess Servicing Fee Right, the Person then acting as Master Servicer
shall pay, out of each amount paid to the Master Servicer as Master Servicing
Fees, the Excess Servicing Fees to the holder of the Excess Servicing Fee Right
within one Business Day following the payment of such Master Servicing Fees to
the Master Servicer, in each case in accordance with payment instructions
provided by such holder in writing to the Master Servicer. The holder of the
Excess Servicing Fee Right shall not have any rights under this Agreement except
as set forth in the preceding sentences of this paragraph.
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The right to receive the Master Servicing Fee may not be transferred in
whole or in part except pursuant to the immediately preceding paragraph or in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
(b) The Master Servicer shall be entitled to receive the following items as
additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Performing Mortgage Loan;
(ii) 50% (or, if the Master Servicer administers the related
modification, waiver or amendment pursuant to Section 3.20(g), 100%) of any
and all modification fees, extension fees and earnout fees actually paid by
a Borrower with respect to a Performing Mortgage Loan;
(iii) 100% of any and all charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and
other loan processing fees actually paid by a Borrower with respect to a
Performing Mortgage Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Mortgage Loan;
(iv) 50% of any and all Net Assumption Application Fees and Net
Assumption Fees actually paid by a Borrower with respect to a Performing
Mortgage Loan;
(v) any Prepayment Interest Excesses collected on the Mortgage Loans;
(vi) any portion of the Recording/Filing Reserve Funds that are not
needed to cover the costs and expenses of recording and filing assignments
and other transfer documents associated with the Original Mortgage Loans
pursuant to Section 2.01(e); and
(vii) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period and,
further, in the case of a Servicing Account or Reserve Account, only to the
extent such interest or other income is not required to be paid to any
Borrower under applicable law or under the related Mortgage).
To the extent that amounts described in clauses (ii) - (v) of the preceding
paragraph are collected by the Special Servicer with respect to Performing
Mortgage Loans, the Special Servicer shall promptly pay such amounts to the
Master Servicer.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive monthly the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Mortgage Loan. As to each
Specially Serviced Mortgage Loan and REO Mortgage Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue (on a 30/360 Basis) at the Special Servicing Fee Rate on the same
principal amount as interest accrues from time to time during such calendar
month (or portion thereof) on such Specially Serviced Mortgage Loan or is deemed
to accrue from time to time during such calendar month (or portion thereof) on
such REO Mortgage Loan, as the case may be. The Special Servicing Fee with
respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan shall cease
to accrue as of the date a Liquidation Event
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occurs in respect thereof or, in the case of a Specially Serviced Mortgage Loan,
as of the date it becomes a Corrected Mortgage Loan. Earned but unpaid Special
Servicing Fees shall be payable monthly out of general collections on the
Mortgage Loans and any REO Properties on deposit in the Collection Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be
payable out of, and shall be calculated by application of the Workout Fee Rate
to, each payment of interest (other than Post-ARD Additional Interest and
Default Interest) and principal received from the related Borrower on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout
Fee with respect to any Corrected Mortgage Loan will cease to be payable if a
Servicing Transfer Event occurs with respect thereto or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee would become
payable if and when such Mortgage Loan again became a Corrected Mortgage Loan.
If the Special Servicer is terminated (other than for cause), including pursuant
to Section 6.06, or resigns in accordance with Section 6.04, it shall retain the
right to receive any and all Workout Fees payable in respect of Mortgage Loans
that became Corrected Mortgage Loans during the period that it acted as Special
Servicer and that were still Corrected Mortgage Loans at the time of such
termination or resignation (and the successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff from the related Borrower or any Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds (other than in connection with the
purchase of any such Specially Serviced Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer or a Controlling Class Certificateholder
pursuant to Section 3.18 or Section 9.01, or the repurchase or replacement
thereof by Union Capital pursuant to the Union Capital Agreement or by the
Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement). As to
each such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee
shall be payable out of, and shall be calculated by application of the
Liquidation Fee Rate to, any such full or discounted payoff, Insurance Proceeds,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Post-ARD Additional Interest, Default Interest, a Prepayment Premium
or a Yield Maintenance Charge). The Liquidation Fee with respect to any such
Specially Serviced Mortgage Loan will not be payable if such Mortgage Loan
becomes a Corrected Mortgage Loan. Notwithstanding anything herein to the
contrary, no Liquidation Fee will be payable in connection with the receipt of,
or out of, Liquidation Proceeds collected as a result of the purchase or
substitution of any Specially Serviced Mortgage Loan or REO Property described
in the parenthetical to the first sentence of this paragraph.
The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive the following items
as additional special servicing compensation (the following items, collectively,
the "Additional Special Servicing Compensation"):
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(i) any and all Net Default Charges collected with respect to a
Specially Serviced Mortgage Loan or an REO Mortgage Loan;
(ii) any Net Assumption Fees, Net Assumption Application Fees,
modification fees, extension fees, earnout fees, charges for beneficiary
statements or demands that are actually received on or with respect to
Specially Serviced Mortgage Loans or REO Mortgage Loans;
(iii) 50% (or, if the Master Servicer administers the related
modification, waiver or amendment pursuant to Section 3.20(g), 0%) of any
modification fees, extension fees and earnout fees that are actually paid
by a Borrower with respect to a Performing Mortgage Loan;
(iv) 50% of any Net Assumption Application Fees and Net Assumption
Fees that are actually paid by a Borrower with respect to a Performing
Mortgage Loan; and
(v) interest or other income earned on deposits in the REO Account, if
established, in accordance with Section 3.06(b) (but only to the extent of
the Net Investment Earnings, if any, with respect to the REO Account for
each Collection Period).
To the extent that amounts described in clauses (i) - (iv) of the preceding
paragraph are collected by the Master Servicer with respect to Specially
Serviced Mortgage Loans, the Master Servicer shall promptly pay such amounts to
the Special Servicer and shall not be required to deposit such amounts in the
Collection Account pursuant to Section 3.04(a).
(e) The Master Servicer and the Special Servicer shall each be required
(subject to Section 3.11(h) below) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of Sub-Servicers
retained by it (including any termination fees) and the premiums for any blanket
policy or the standby fee or similar premium for any master force place policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Collection
Account, the Servicing Accounts, the Reserve Accounts or the REO Account, and
neither the Master Servicer nor the Special Servicer shall be entitled to
reimbursement for any such expense incurred by it except as expressly provided
in this Agreement. If the Master Servicer is required to make any Servicing
Advance hereunder at the discretion of the Special Servicer in accordance with
Section 3.19 or otherwise, the Special Servicer shall promptly provide the
Master Servicer with such documentation regarding the subject Servicing Advance
as the Master Servicer may reasonably request.
(f) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within ten days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to the
Master Servicer and the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three Business Days after such
notice, then (subject to Section 3.11(h) below) the Trustee or a Fiscal Agent
appointed thereby shall make such Advance. If any Fiscal Agent makes any such
Servicing Advance, the Trustee shall be deemed not to be in default under this
Agreement for failing to do so.
(g) The Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent shall each be entitled to receive interest at the Reimbursement Rate in
effect from time to time, accrued on the
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amount of each Servicing Advance made thereby (with its own funds), for so long
as such Servicing Advance is outstanding. Such interest with respect to any
Servicing Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.26, out of any Default Charges subsequently collected on or in respect of
the particular Mortgage Loan or REO Mortgage Loan as to which such Servicing
Advance relates; and (ii) then, after such Servicing Advance is reimbursed, but
only if and to the extent that such Default Charges are insufficient to cover
such Advance Interest, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Collection Account. The Master Servicer shall
reimburse itself, the Special Servicer, the Trustee or any Fiscal Agent, as
appropriate, for any Servicing Advance made by any such Person as soon as
practicable after funds available for such purpose are deposited in the
Collection Account. The Master Servicer shall not be entitled to Advance
Interest to the extent a payment is received but is being held by the Master
Servicer in suspense.
(h) Notwithstanding anything to the contrary set forth herein, none of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall be
required to make any Servicing Advance that it determines in its reasonable,
good faith judgment would constitute a Nonrecoverable Servicing Advance. The
determination by any Person with an obligation hereunder to make Servicing
Advances that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made by such Person in its reasonable, good faith judgment and
shall be evidenced by an Officer's Certificate delivered promptly to the
Depositor and the Trustee (unless it is the Person making such determination),
which shall provide a copy thereof to the Controlling Class Representative,
setting forth the basis for such determination, accompanied by a copy of an
Appraisal, if and when available, of the related Mortgaged Property or REO
Property performed within the 12 months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee and
any Fiscal Agent shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular Servicing Advance, and the Master Servicer
and the Special Servicer shall each be entitled to conclusively rely on any
determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Master Servicer and the
Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein, the Master
Servicer shall (at the direction of the Special Servicer if a Specially Serviced
Mortgage Loan or an REO Property is involved) pay directly out of the Collection
Account any servicing expense that, if paid by the Master Servicer or the
Special Servicer, would constitute a Nonrecoverable Servicing Advance; provided
that the Master Servicer (or the Special Servicer, if a Specially Serviced
Mortgage Loan or an REO Property is involved) has determined in accordance with
the Servicing Standard that making such payment is in the best interests of the
Certificateholders (as a collective whole), as evidenced by an Officer's
Certificate delivered promptly to the Depositor and the Trustee, which shall
provide a copy thereof to the Controlling Class Representative, setting forth
the basis for such determination and accompanied by any information that such
Person may have obtained that supports such determination. A copy of any such
Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered
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promptly to the Special Servicer, and a copy of any such Officer's Certificate
(and accompanying information) of the Special Servicer shall also be promptly
delivered to the Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a physical
inspection of a Mortgaged Property as soon as practicable (but in any event not
later than 60 days) after the related Mortgage Loan becomes a Specially Serviced
Mortgage Loan (and, in cases where the related Mortgage Loan has become a
Specially Serviced Mortgage Loan, the Special Servicer shall continue to perform
or cause to be performed a physical inspection of the subject Mortgage Property
at least once per calendar year thereafter for so long as the related Mortgage
Loan remains a Specially Serviced Mortgage Loan or if such Mortgaged Property
becomes an REO Property); provided that the Special Servicer shall be entitled
to reimbursement of the reasonable and direct out-of-pocket expenses incurred by
it in connection with each such inspection as Servicing Advances. Beginning in
2001, the Master Servicer shall at its expense perform or cause to be performed
an inspection of each Mortgaged Property at least once per calendar year (or, in
the case of each Mortgage Loan with an unpaid principal balance of under
$2,000,000, once every two years), if the Special Servicer has not already done
so during that period pursuant to the preceding sentence. The Master Servicer
and the Special Servicer shall each prepare a written report of each such
inspection performed by it or on its behalf that sets forth in detail the
condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or Special Servicer, as applicable, is aware, (ii) any
change in the condition, occupancy or value of the Mortgaged Property that the
Master Servicer or the Special Servicer, as applicable, in accordance with the
Servicing Standard, considers material, or (iii) any waste committed on the
Mortgaged Property that the Master Servicer or the Special Servicer, as the case
may be, in accordance with the Servicing Standard, considers material. The
Master Servicer and the Special Servicer shall each deliver to the Trustee and
each other a copy (or image in suitable electronic media) of each such written
report prepared by it within 60 days of completion of the related inspection.
The Trustee shall, upon request and to the extent such items have been delivered
to the Trustee by the Master Servicer, deliver to each of the Depositor, the
Underwriters, the Mortgage Loan Seller, the Controlling Class Representative,
any Certificateholder or, to the extent the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in Certificates held thereby,
any Certificate Owner, a copy (or image in suitable electronic media) of each
such written report prepared by the Master Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended June 30, 2001,
the Special Servicer, in the case of any Specially Serviced Mortgage Loan, and
the Master Servicer, in the case of each Performing Mortgage Loan, shall make
reasonable efforts to collect promptly from each related Borrower quarterly and
annual operating statements, budgets and rent rolls of the related Mortgaged
Property, and quarterly and annual financial statements of such Borrower,
whether or not delivery of such items is required pursuant to the terms of the
related Mortgage. In addition, the Special Servicer shall cause quarterly and
annual operating statements, budgets and rent rolls to be regularly prepared in
respect of each REO Property and shall collect all such items promptly following
their preparation. The Master Servicer and the Special Servicer shall each
deliver copies (or images in suitable electronic media) of all of the foregoing
items so collected thereby to the Trustee and each other, in each case within 60
days of its receipt thereof. The Trustee shall, upon request, deliver copies of
the foregoing items to each of the Depositor, the Controlling Class
Representative, the Underwriters, the Mortgage Loan Seller and any
Certificateholder or, to the extent the Trustee has in accordance with
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Section 5.06(b) confirmed the Ownership Interest in Certificates held thereby,
any Certificate Owner, a copy (or image in suitable electronic media) of each of
the foregoing items.
Within 45 days after receipt by the Master Servicer, as to Performing
Mortgage Loans, and within 20 days after receipt by the Special Servicer, as to
Specially Serviced Mortgage Loans, of any annual operating statements or rent
rolls with respect to any Mortgaged Property or REO Property, the Master
Servicer or the Special Servicer, as applicable, shall, based upon such
operating statements or rent rolls, prepare (or, if previously prepared, update)
the written analysis of operations (the "Operating Statement Analysis Report"),
and the Special Servicer shall remit each Operating Statement Analysis Report
prepared by it, together with the underlying operating statements and rent
rolls, to the Master Servicer in a format reasonably acceptable to the Master
Servicer. All Operating Statement Analysis Reports shall be maintained by the
Master Servicer with respect to each Mortgaged Property and REO Property, and
the Master Servicer shall forward copies thereof (in each case, promptly
following the initial preparation and each material revision thereof) to the
Trustee and the Special Servicer, together with the related operating statements
or rent rolls. The Trustee shall, upon request and to the extent such items have
been delivered to the Trustee by the Master Servicer, deliver to the
Underwriters, the Mortgage Loan Seller, the Controlling Class Representative,
any Certificateholder or, to the extent the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, any Certificate Owner, a copy of such Operating Statement Analysis (or
update thereof) and the related operating statement or rent rolls. The Master
Servicer shall maintain an Operating Statement Analysis Report with respect to
each Mortgaged Property and REO Property. Each such Operating Statement Analysis
Report shall be substantially in the form of Exhibit E-8 attached hereto (or, at
the discretion of the Master Servicer, provided that no less information is
provided than is set forth in Exhibit E-8, in a CMSA format).
Within 45 days after receipt by the Master Servicer or 20 days after
receipt by the Special Servicer of any annual operating statements with respect
to any Mortgaged Property or REO Property, as applicable, each of the Master
Servicer and the Special Servicer shall prepare or update (and, in the case of
the Special Servicer, forward within such 20-day period to the Master Servicer
in an electronic format reasonably acceptable to the Master Servicer) an NOI
Adjustment Worksheet for such Mortgaged Property or REO Property (with the
annual operating statements attached thereto as an exhibit).
If, with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan), the Special Servicer has any questions for the related Borrower
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or 3.12(b), the Master Servicer shall, in this regard and without
otherwise changing or modifying its duties hereunder, reasonably cooperate with
the Special Servicer in assisting the Special Servicer to contact and solicit
information from such Borrower.
(c) Not later than 2:00 p.m. (New York City time) on each Determination
Date, the Special Servicer shall prepare and deliver or cause to be delivered to
the Master Servicer and the Controlling Class Representative the following
reports (or data files relating to reports of the Master Servicer) with respect
to the Specially Serviced Mortgage Loans and any REO Properties, providing the
required information as of such Determination Date: (i) a Property File; and
(ii) a Loan Periodic Update File (which, in each case, if applicable, will
identify each Mortgage Loan by loan number and property name). At or before 2:00
p.m. (New York City time) on the first Business Day following each Determination
Date, the Special Servicer shall prepare and deliver or cause to be delivered to
the Master Servicer the following reports with respect to the Specially Serviced
Mortgage Loans and any REO
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Properties, providing the information required of the Special Servicer in an
electronic format reasonably acceptable to the Master Servicer as of such
Determination Date: (i) a Delinquent Loan Status Report; (ii) a Comparative
Financial Status Report; (iii) an Historical Liquidation Report; (iv) an
Historical Loan Modification Report; and (v) an REO Status Report and (vi) a
Property File. In addition, the Special Servicer shall from time to time provide
the Master Servicer with such information in the Special Servicer's possession
regarding the Specially Serviced Mortgage Loans and REO Properties as may be
requested by the Master Servicer and reasonably necessary for the Master
Servicer to prepare each report and any supplemental information required to be
provided by the Master Servicer to the Trustee.
(d) Not later than 3:00 p.m. (New York City time) on the second Business
Day after each Determination Date, the Master Servicer shall prepare (if and to
the extent necessary) and deliver or cause to be delivered to the Trustee, in a
computer-readable medium downloadable by the Trustee (or, at the Trustee's
written request, in a form reasonably acceptable to the recipient, including a
loan-by-loan basis, each of the files and reports comprising the CMSA Investor
Reporting Package (excluding any Operating Statement Analysis Report, the Bond
File, the Collateral Summary File and the Loan Set-up File), in each case
providing the most recent information as of the related Determination Date (and
which, in each case, if applicable, will identify each Mortgage Loan by loan
number and property name); provided that the Master Servicer shall not be
required to prepare and deliver any of the files and reports comprising the CMSA
Investor Reporting Package (other than the Loan Periodic Update File) before the
second Business Day following the third Determination Date following the Closing
Date.
The Master Servicer may, but is not required to, make any of the reports or
files comprising the CMSA Investor Reporting Package (other than the Bond File
and the Collateral Summary File, which are prepared by the Trustee) available
each month on the Master Servicer's Internet Website only with the use of a
password, in which case the Master Servicer shall provide such password to (i)
the other parties to this Agreement, who by their acceptance of such password
shall be deemed to have agreed not to disclose such password to any other
Person, (ii) the Rating Agencies and the Controlling Class Representative, (iii)
each Certificateholder who requests such password and (iv) each Certificate
Owner who requests such password, provided that such Certificate Owner has
delivered a certification substantially in the form of Exhibit L-1 to the
Trustee (with a copy to the Master Servicer). In connection with providing
access to the Master Servicer's Internet Website, the Master Servicer may
require registration and the acceptance of a disclaimer and otherwise (subject
to the preceding sentence) adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer deems necessary or appropriate,
conditioning access on execution of an agreement governing the availability, use
and disclosure of such information, and which may provide indemnification to the
Master Servicer for any liability or damage that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the reports
set forth in Section 3.12(b) and Section 3.12(c), and the Master Servicer shall
deliver to the Trustee the reports set forth in Section 3.12(d), in an
electronic format reasonably acceptable to the Special Servicer, the Master
Servicer and the Trustee. The Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(b) and Section 3.12(c). The Trustee may, absent manifest error,
conclusively rely on the reports to be provided by the Master Servicer pursuant
to Section 3.12(d). In the case of information or reports to be furnished by the
Master Servicer to the Trustee pursuant to Section 3.12(d), to the extent that
such information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(b) or Section 3.12(c)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(b) or Section 3.12(c), the Master
Servicer shall have no obligation to
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provide such information or reports to the Trustee until it has received the
requisite information or reports from the Special Servicer, and the Master
Servicer shall not be in default hereunder due to a delay in providing the
reports required by Section 3.12(d) caused by the Special Servicer's failure to
timely provide any information or report required under Section 3.12(b) or
Section 3.12(c) of this Agreement.
(f) Notwithstanding the foregoing, however, the failure of the Master
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Master Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Master Servicer or the Special
Servicer as the case may be, would violate any applicable law or any provision
of a Mortgage Loan document prohibiting disclosure of information with respect
to the Mortgage Loans or Mortgaged Properties or would constitute a waiver of
the attorney-client privilege on behalf of the Trust. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law and
the Servicing Standard. The Master Servicer or the Special Servicer may affix to
any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(g) The Depositor shall provide to the Master Servicer and the Trustee the
initial data (as of the Cut-Off Date or the most recent earlier date for which
such data is available) contemplated by the Loan Set-up File, the Loan Periodic
Update File, the Operating Statement Analysis Report and the Property File.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, the Depositor, the Underwriters, the Controlling Class Representative
and each other, on or before March 15, in the case of the Master Servicer, and
March 31, in the case of the Special Servicer, of each year, beginning in 2001,
an Officer's Certificate (the "Annual Performance Certification") stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year (or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof), and (iii) the Master Servicer or the Special Servicer, as
the case may be, has received no notice regarding the qualification, or
challenging the status, of any REMIC Pool as a REMIC or either Grantor Trust
Pool as a Grantor Trust from the IRS or any other governmental agency or body
(or, if it has received any such notice, specifying the details thereof);
provided that neither the Master Servicer nor the Special Servicer shall be
required to deliver its Annual Performance Certification until April 30 in any
given year after 2001 unless it has received written confirmation from the
Trustee or the Depositor by January 31 of that year that a Report on Form 10-K
is required to be filed in respect of the Trust for the preceding calendar year.
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SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15, in the case of the Master Servicer, and March 31, in
the case of the Special Servicer, of each year, beginning in 2001, each of the
Master Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters, the Controlling Class
Representative and each other, to the effect that such firm has examined the
servicing operations of the Master Servicer or the Special Servicer, as the case
may be, for the previous calendar year and that, on the basis of such
examination, conducted substantially in compliance with USAP, such firm confirms
that the Master Servicer or the Special Servicer, as the case may be, has
complied during such previous calendar year with the minimum servicing standards
(to the extent applicable to commercial and multifamily mortgage loans)
identified in USAP in all material respects, except for such significant
exceptions or errors in records that, in the opinion of such firm, USAP requires
it to report; provided that neither the Master Servicer nor the Special Servicer
shall be required to cause the delivery of its Annual Accountants' Report until
April 30 in any given year after 2001 unless it has received written
confirmation from the Trustee or the Depositor by January 31 of that year that a
Report on Form 10-K is required to be filed in respect of the Trust for the
preceding calendar year. In rendering its report such firm may rely, as to
matters relating to the direct servicing of securitized commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those sub-servicers.
The Master Servicer and the Special Servicer will each reasonably cooperate
with the Depositor in providing any other form of accountants' reports as may be
required by the Commission in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act, and the reasonable additional costs
of providing such other forms of accountants' reports shall be borne by the
Depositor.
SECTION 3.15. Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, any Fiscal Agent, the Depositor, the Underwriters, the Mortgage
Loan Seller, each Rating Agency, the Controlling Class Representative and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access to
any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law,
the terms of the Mortgage Loan documents or contract entered into prior to the
Closing Date or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it. The Master Servicer and
the Special Servicer shall each be entitled to affix a reasonable disclaimer to
any information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto). In connection with
providing access to such records to the Controlling Class Representative, the
Master Servicer and the Special Servicer may each require registration (to the
extent access is provided via the Master Servicer's Internet website) and the
acceptance of a disclaimer and otherwise adopt reasonable rules and procedures,
which may include, to the extent the Master Servicer or the Special Servicer, as
applicable, deems necessary or appropriate, conditioning access on
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the execution and delivery of an agreement governing the availability, use and
disclosure of such information.
Each of the Master Servicer and the Special Servicer shall not be liable
for providing or disseminating information in accordance with the terms of this
Agreement.
(b) No less often than on a monthly basis, each of the Master Servicer and
the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer available to answer questions from the Controlling Class Representative
regarding the performance and servicing of the Mortgage Loans and/or REO
Properties for which the Master Servicer or the Special Servicer, as the case
may be, is responsible.
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, shall sell any
REO Property by the end of the third calendar year following the year in which
the Trust acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than 60 days prior to the expiration of such liquidation period, and is granted
an extension of time (an "REO Extension") by the IRS to sell such REO Property
or (ii) obtains for the Trustee and the Tax Administrator an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
holding by the Trust of such REO Property subsequent to the end of the third
calendar year following the year in which such acquisition occurred will not
result in an Adverse REMIC Event with respect to any REMIC Pool. Regardless of
whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act in accordance with the Servicing Standard to liquidate such
REO Property on a timely basis. If the Special Servicer is granted such REO
Extension or obtains such Opinion of Counsel, the Special Servicer shall (i)
promptly forward a copy of such REO Extension or Opinion of Counsel to the
Trustee, and (ii) sell such REO Property within such extended period as is
permitted by such REO Extension or contemplated by such Opinion of Counsel, as
the case may be. Any expense incurred by the Special Servicer in connection with
its applying for and being granted the REO Extension contemplated by clause (i)
of the third preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the third preceding sentence, shall be covered
by, and be reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds collected and
received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), to be held on behalf of the Trustee in trust for the benefit of
the Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. Each account that constitutes 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 following receipt, all
REO Revenues, Insurance Proceeds and Liquidation Proceeds received in respect of
an REO Property. Funds in the REO Account may be invested in Permitted
Investments in accordance with Section 3.06. The Special Servicer shall be
entitled to make withdrawals from the REO Account to pay itself, as Additional
Special Servicing Compensation, interest and investment income earned in respect
of amounts held in the REO Account as provided in Section 3.06(b) (but only to
the extent of the Net
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Investment Earnings, if any, with respect to the REO Account for any Collection
Period). The Special Servicer shall give notice to the other parties hereto of
the location of the REO Account when first established and of the new location
of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, 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. Within two Business Days
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Collection Account or deliver to the
Master Servicer (which shall deposit such amounts into the Collection Account)
the aggregate of all amounts received in respect of each REO Property during
such Collection Period, net of any withdrawals made out of such amounts pursuant
to the preceding sentence; provided that the Special Servicer may retain in the
REO Account such portion of such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of the related REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items reasonably expected to be incurred during the
following 12-month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
defaulted Mortgage Loan, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions or to the tax imposed on "prohibited
transactions" under Section 860F of the Code (either such tax referred to
herein as an "REO Tax"), such Mortgaged Property may be Directly Operated
by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided that in the judgment of the Special Servicer, exercised in
accordance with the Servicing Standard, it is commercially reasonable) so
lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust incurring or possibly incurring an REO Tax
on income from such property, the Special Servicer shall deliver to the Tax
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Administrator, in writing, a proposed plan (the "Proposed Plan") to manage
such property as REO Property. Such plan shall include potential sources of
income and good faith estimates of the amount of income from each such
source. Within a reasonable period of time after receipt of such plan, the
Tax Administrator shall consult with the Special Servicer and shall advise
the Special Servicer of the Trust's federal income tax reporting position
with respect to the various sources of income that the Trust would derive
under the Proposed Plan. In addition, the Tax Administrator shall (to the
maximum extent reasonably possible) advise the Special Servicer of the
estimated amount of taxes that the Trust would be required to pay with
respect to each such source of income. After receiving the information
described in the two preceding sentences from the Tax Administrator, the
Special Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property) or (B) manage
and operate such property in a manner that would not result in the
imposition of an REO Tax on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be in accordance with the Servicing Standard. Neither
the Special Servicer nor the REMIC Administrator shall be liable to the
Certificateholders, the Trust, the other parties hereto or each other for errors
in judgment made in good faith in the exercise of their discretion while
performing their respective responsibilities under this Section 3.17(a). Nothing
in this Section 3.17(a) is intended to prevent the sale of a Defaulted Mortgage
Loan or REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or, except as
contemplated by Section 3.17(a), result in the receipt by any REMIC Pool of any
"income from non-permitted assets" within the meaning of Section 860F(a)(2)(B)
of the Code or in an Adverse REMIC Event with respect to any REMIC Pool. Except
as contemplated by Section 3.17(a), the Special Servicer shall not enter into
any lease, contract or other agreement that causes the Trust to receive, and
(unless required to do so under any lease, contract or agreement to which the
Special Servicer or the Trust may become a party or successor to a party due to
a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a
creditor's rights or remedies with respect to a Mortgage Loan) shall not cause
or allow the Trust to receive, any "net income from foreclosure property" that
is subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are consistent with the Servicing Standard
and, consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation, management, maintenance and disposition of such REO
Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
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(iv) all other costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account with respect to any REO
Property are insufficient for the purposes contemplated by the preceding
sentence with respect to such REO Property, the Master Servicer shall, at the
direction of the Special Servicer, advance such amounts as are necessary for
such purposes unless the Master Servicer or the Special Servicer determines, in
its reasonable, good faith judgment, that such advances would, if made, be
Nonrecoverable Servicing Advances; provided, however, that the Master Servicer
may in its sole discretion make any such Servicing Advance without regard to
recoverability if it is a necessary fee or expense incurred in connection with
the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and management
of such REO Property, including those listed in Section 3.17(b) above, and
(B) remit all related revenues collected (net of its fees and such costs
and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
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. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
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SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or purchase
of, a Mortgage Loan or REO Property only on the terms and subject to the
conditions set forth in this Section 3.18 or as otherwise expressly provided in
or contemplated by Sections 2.02, 2.03 and 9.01.
(b) If the Special Servicer has determined, in its reasonable, good faith
judgment, that any Defaulted Mortgage Loan will become subject to foreclosure
proceedings and that the sale of such Mortgage Loan under the circumstances
provided in this Section 3.18 is in accordance with the Servicing Standard, then
the Special Servicer shall promptly so notify in writing the Trustee and the
Master Servicer, and the Trustee shall, within five days after receipt of such
notice, so notify all the Controlling Class Certificateholders. Any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders may, at its or their option, within 15 days after receipt of
such notice, purchase any Defaulted Mortgage Loan out of the Trust Fund at a
cash price equal to the applicable Purchase Price; provided that, if more than
one Controlling Class Certificateholder or group of Controlling Class
Certificateholders desire to purchase such Defaulted Mortgage Loan, preference
shall be given to the Controlling Class Certificateholder or group of
Controlling Class Certificateholders with the largest Percentage Interest in the
Controlling Class. The Purchase Price for any Defaulted Mortgage Loan purchased
under this Section 3.18(b) shall be deposited into the Collection Account, and
the Trustee, upon receipt of an Officer's Certificate from the Master Servicer
to the effect that such deposit has been made, shall release or cause to be
released to the Certificateholder(s) effecting such purchase (or to its or their
designee) the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in such
Certificateholder(s) ownership of such Mortgage Loan. In connection with any
such purchase, the Special Servicer shall deliver the related Servicing File to
the Certificateholder(s) effecting such purchase (or to its or their designee).
(c) If none of the Controlling Class Certificateholders has purchased any
Defaulted Mortgage Loan described in the first sentence of Section 3.18(b)
within 15 days of such Holders' having received notice in respect thereof
pursuant to Section 3.18(b) above, then the Trustee shall within five days of
the end of such 15-day period send notice to the Master Servicer and the Special
Servicer that such Mortgage Loan was not purchased by such Certificateholder(s),
and either the Special Servicer or the Master Servicer (in that order of
priority) may, at its option, within 15 days after receipt of such notice,
purchase (or designate an Affiliate thereof to purchase) such Mortgage Loan out
of the Trust Fund at a cash price equal to the Purchase Price. The Purchase
Price for any such Mortgage Loan purchased under this Section 3.18(c) shall be
deposited into the Collection Account, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Master Servicer or
the Special Servicer (or the designated Affiliate thereof), as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer (or the designated Affiliate thereof), as applicable, the ownership of
such Mortgage Loan. In connection with any such purchase by the Master Servicer
(or any designated Affiliate thereof), the Special Servicer shall deliver the
related Servicing File to the Master Servicer (or any designated Affiliate
thereof). For purposes of the other sections of this Agreement, any purchase of
a Defaulted Mortgage Loan by a designated Affiliate of the Master Servicer or
Special Servicer pursuant to this Section 3.18(c) shall be deemed a purchase of
such Defaulted Mortgage Loan by the Master Servicer or the Special Servicer, as
applicable.
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(d) Subject to Section 3.24, the Special Servicer may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would be in the best economic
interests of the Certificateholders (as a collective whole). Such offer shall be
made in a commercially reasonable manner (which, for purposes hereof, includes
an offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited to
recourse against the Trust) for a period of not less than ten days. Subject to
Section 3.18(h) and Section 3.24, the Special Servicer shall accept the highest
cash bid received from any Person that constitutes a fair price for such
Mortgage Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
The Special Servicer shall use its best 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). Subject to Section
3.18(h) and Section 3.24, the Special Servicer shall accept the first (and, if
multiple bids are received by a specified bid date, the highest) cash bid
received from any Person that constitutes a fair price (determined pursuant to
Section 3.18(e) below) for such REO Property. If the Special Servicer reasonably
believes that it will be unable to realize a fair price (determined pursuant to
Section 3.18(e) below) for any REO Property within the time constraints imposed
by Section 3.16(a), the Special Servicer shall dispose of such REO Property upon
such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances.
The Special Servicer shall give the Trustee, the Master Servicer and the
Controlling Class Representative not less than five Business Days' prior written
notice of its intention to sell any Defaulted Mortgage Loan or REO Property
pursuant to this Section 3.18(d). No Interested Person shall be obligated to
submit a bid to purchase any such Mortgage Loan or REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from the Special Servicer or an Affiliate thereof, by the Trustee. In
determining whether any bid received from the Special Servicer or an Affiliate
thereof represents a fair price for any such Mortgage Loan or REO Property, the
Trustee shall be supplied with and shall be entitled to rely on the most recent
Appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period (or, in the absence of any such
Appraisal or if there has been a material change at the subject property since
any such Appraisal, on a new Appraisal to be obtained by the Special Servicer
(the cost of which shall be covered by, and be reimbursable as, a Servicing
Advance)). The appraiser conducting any such new Appraisal shall be a Qualified
Appraiser that is (i) selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to a Defaulted
Mortgage Loan or REO Property and (ii) selected by the Trustee if either the
Special Servicer or any Affiliate thereof is so bidding. Where any Interested
Person is among those bidding with respect to a Defaulted Mortgage Loan or REO
Property, the Special Servicer shall require that all bids be submitted to it
(or, if the Special Servicer or an Affiliate thereof is bidding, shall be
submitted by it to the Trustee) in writing and be accompanied by a refundable
deposit of cash in an amount equal to 5% of the bid amount. In determining
whether any bid from a Person other than the Special Servicer or an Affiliate
thereof constitutes a fair price for any such Mortgage Loan or REO Property, the
Special Servicer shall take into account the results of any Appraisal or updated
Appraisal
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that it or the Master Servicer may have obtained in accordance with this
Agreement within the preceding 12-month period, and any Qualified Appraiser
shall be instructed to take into account, as applicable, among other factors,
the period and amount of any delinquency on the affected Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any such Mortgage Loan or REO Property shall in all cases be deemed a
fair price. Notwithstanding the other provisions of this Section 3.18, no cash
bid from the Special Servicer or any Affiliate thereof shall constitute a fair
price for any Defaulted Mortgage Loan or REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received or if no additional bids are received, then the bid of
the Special Servicer or such Affiliate shall be accepted, provided that the
Trustee has otherwise determined, as provided above in this Section 3.18(e),
that such bid constitutes a fair price for any Defaulted Mortgage Loan or REO
Property. Any bid by the Special Servicer shall be unconditional; and, if
accepted, the Defaulted Mortgage Loan or REO Property shall be transferred to
the Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee in negotiating with independent third parties
and taking any other action necessary or appropriate in connection with the sale
of any Defaulted Mortgage Loan or REO Property, and the collection of all
amounts payable in connection therewith. In connection therewith, the Special
Servicer may charge prospective bidders, and may retain, fees that approximate
the Special Servicer's actual costs in the preparation and delivery of
information pertaining to such sales or evaluating bids without obligation to
deposit such amounts into the Collection Account. Any sale of a Defaulted
Mortgage Loan or any REO Property shall be final and without recourse (except
for warranties of title and condition contemplated by Section 3.18(d)) to the
Trustee or the Trust, 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.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only.
(h) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
but subject to Section 3.24, the Special Servicer shall not be obligated to
accept the highest cash bid if the Special Servicer determines, in accordance
with the Servicing Standard, that rejection of such bid would be in the best
interests of the Certificateholders (as a collective whole), and the Special
Servicer may accept a lower cash bid (from any Person other than itself or an
Affiliate) if it determines, in accordance with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(as a collective whole) (for example, if the prospective buyer making the lower
bid is more likely to perform its obligations or the terms (other than price)
offered by the prospective buyer making the lower bid are more favorable).
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SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account by 2:00 p.m. (New York City time) on each Master Servicer
Remittance Date, without any right of reimbursement therefor, an amount (a
"Compensating Interest Payment") equal to the lesser of (i) the aggregate amount
of Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Pool during the most recently
ended Collection Period, and (ii) the aggregate of (A) that portion of its
Master Servicing Fees for the related Collection Period that is, in the case of
each and every Mortgage Loan and REO Mortgage Loan for which such Master
Servicing Fees are being paid in such Collection Period, calculated at 0.02% per
annum, and (B) all Prepayment Interest Excesses received by the Master Servicer
during the most recently ended Collection Period.
(b) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated, out
of the Master Servicer's own funds, to reimburse the Special Servicer for any
Servicing Advances (other than Nonrecoverable Servicing Advances) made by but
not previously reimbursed to the Special Servicer, together with interest
thereon at the Reimbursement Rate from the date made to, but not including, the
date of reimbursement. Such reimbursement and any accompanying payment of
interest shall be made within ten Business Days of the written request therefor
by wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(b), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer actually made such
Servicing Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Servicing Advance, together with interest thereon in
accordance with Sections 3.05(a) and 3.11(g), at the same time, in the same
manner and to the same extent as the Master Servicer would otherwise have been
entitled if it had actually made such Servicing Advance at the time the Special
Servicer did.
Notwithstanding anything to the contrary contained in any other Section of
this Agreement, if the Special Servicer is required under this Agreement (but
subject to the following paragraph), to make any Servicing Advance but does not
desire to do so, the Special Servicer may, in its sole discretion, request that
the Master Servicer make such Servicing Advance. Any such request shall be made,
in writing, in a timely manner that does not adversely affect the interests of
any Certificateholder (and, in any event, to the extent reasonably practicable,
at least five Business Days in advance of the date on which the subject
Servicing Advance is to be made) and shall be accompanied by such information
and documentation regarding the subject Servicing Advance as the Master Servicer
may reasonably request; provided, however, that the Special Servicer shall not
be entitled to make such a request (other than for emergency advances) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer shall have the obligation
to make any such Servicing Advance (other than a Nonrecoverable Servicing
Advance) that it is so requested by the Special Servicer to make, within five
Business Days of the Master Servicer's receipt of such request. If the request
is timely and properly made, the Special Servicer shall be relieved of any
obligations with respect to a Servicing Advance that it so requests the Master
Servicer to make (regardless of whether or not the Master Servicer shall make
such Servicing Advance). The Master Servicer shall be entitled to reimbursement
for any Servicing Advance made by it at the direction of the Special Servicer,
together with interest thereon in accordance with Sections 3.05(a) and 3.11(g),
at the
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same time, in the same manner and to the same extent as the Master Servicer is
entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), the
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if the
Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger Event with
respect to any Mortgage Loan, the Special Servicer shall obtain (or, if such
Mortgage Loan has a Stated Principal Balance of $2,000,000 or less, at its
discretion, conduct) an Appraisal of the related Mortgaged Property, unless an
Appraisal thereof had previously been obtained (or, if applicable, conducted)
within the preceding 12-month period and there has been no subsequent material
change in the circumstances surrounding the related Mortgaged Property that in
the judgment of the Special Servicer would materially affect the value of the
property, and shall deliver a copy of such Appraisal to the Trustee, the Master
Servicer and the Controlling Class Representative. If such Appraisal is obtained
from a Qualified Appraiser, the cost thereof shall be covered by, and be
reimbursable as, a Servicing Advance. Promptly following the receipt of, and
based upon, such Appraisal, the Special Servicer shall determine and report to
the Trustee, the Master Servicer and the Controlling Class Representative the
then applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a Required
Appraisal Loan, the Special Servicer shall, within 30 days of each anniversary
of such loan's having become a Required Appraisal Loan, obtain (or, if such
Required Appraisal Loan has a Stated Principal Balance of $2,000,000 or less, at
its discretion, conduct) an update of the prior Appraisal. If such update is
obtained from a Qualified Appraiser, the cost thereof shall be covered by, and
be reimbursable as, a Servicing Advance. Promptly following the receipt of, and
based upon, such update, the Special Servicer shall redetermine and report to
the Trustee the then applicable Appraisal Reduction Amount, if any, with respect
to the subject Required Appraisal Loan.
At any time that any Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, the Controlling Class Representative may, at its own
expense, obtain from a Qualified Appraiser and deliver to the Master Servicer,
the Special Servicer and the Trustee an Appraisal of the related Mortgaged
Property or REO Property, as the case may be. Upon the written request of the
Controlling Class Representative, the Special Servicer shall recalculate the
Appraisal Reduction Amount with respect to such Required Appraisal Loan based on
the Appraisal delivered by the Controlling Class Representative and notify the
Trustee, the Master Servicer and the Controlling Class Representative of such
recalculated Appraisal Reduction Amount.
(d) The Master Servicer shall pay, without any right of reimbursement
therefor, the post-Closing Date fees of the Rating Agencies for ongoing
surveillance of the Rated Certificates, but shall not be required to pay without
reimbursement the fees charged by any Rating Agency for (i) a confirmation as to
the lack of an Adverse Rating Event with respect to any Class of Rated
Certificates or (ii) in connection with any other particular matter, unless in
either case the Master Servicer has failed to
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use efforts in accordance with the Servicing Standard to collect such fees from
the Borrower, which shall include, if it has the right to do so under the
applicable Mortgage Loan, conditioning its consent or approval on such payment
by the Borrower.
(e) In connection with each prepayment of principal received hereunder, the
Master Servicer shall calculate any applicable Prepayment Premium or Yield
Maintenance Charge, as the case may be, payable under the terms of the related
Mortgage Note. Upon written request of any Certificateholder, the Master
Servicer shall disclose to such Certificateholder its calculation of any such
Prepayment Premium or Yield Maintenance Charge.
(f) With respect to each Mortgage Loan that provides for defeasance, to the
extent permitted by the terms of such Mortgage Loan, the Master Servicer shall
require the related Borrower (i) to provide replacement collateral consisting of
U.S. government securities within the meaning of Treas. Reg. 1.860G-2(a)(8)(i)
in an amount sufficient to make all scheduled payments under the Mortgage Loan
(or defeased portion thereof) when due (and assuming, in the case of an ARD
Loan, to the extent consistent with the related loan documents, that such
Mortgage Loan matures on its Anticipated Repayment Date), (ii) to deliver a
certificate from an independent certified public accounting firm certifying that
the replacement collateral is sufficient to make such payments, (iii) at the
option of the Master Servicer, to designate a single purpose entity (which may
be a subsidiary of the Master Servicer established for the purpose of assuming
all defeased Mortgage Loans) to assume the Mortgage Loan (or defeased portion
thereof) and own the defeasance collateral, (iv) to implement such defeasance
only after the second anniversary of the Closing Date, (v) to provide an Opinion
of Counsel that the Trustee has a perfected, first priority security interest in
the new collateral, and (vi) in the case of a partial defeasance of the Mortgage
Loan, to defease a principal amount equal to at least 125% of the allocated loan
amount for the Mortgaged Property or Properties to be released. If the subject
Mortgage Loan is not one of the ten largest Mortgage Loans in the Mortgage Pool,
and if either the terms of the Mortgage Loan permit the Master Servicer to
impose the foregoing requirements or the Master Servicer satisfies such
requirements on its own, then confirmation that such defeasance will not result
in an Adverse Rating Event is not required. In such case, the Master Servicer
shall provide the Rating Agencies and the Controlling Class Representative with
notice that the foregoing requirements have been met. However, if the subject
Mortgage Loan is one of the ten largest Mortgage Loans in the Mortgage Pool, or
if the terms of the Mortgage Loan do not permit the Master Servicer to impose
such requirements and the Master Servicer does not satisfy such requirements on
its own, then the Master Servicer shall so notify the Rating Agencies and the
Controlling Class Representative and, if the related loan documents so permit,
obtain a confirmation that such defeasance will not result in an Adverse Rating
Event. Subject to the related Mortgage Loan documents and applicable law, the
Master Servicer shall not execute a defeasance unless (i) the Mortgage Loan
requires the Borrower to pay all Rating Agency fees associated with defeasance
(if Rating Agency approval is a specific condition precedent thereto) and all
expenses associated with defeasance or other arrangements for payment of such
costs are made at no expense to the Trust Fund or the Master Servicer (provided,
however, that in no event shall such proposed "other arrangements" result in any
liability to the Trust Fund including any indemnification of the Master Servicer
or the Special Servicer which may result in legal expenses to the Trust Fund),
and (ii) the Borrower is required to provide all Opinions of Counsel, including
Opinions of Counsel that the defeasance will not cause an Adverse REMIC Event
and that the Mortgage Loan documents are fully enforceable in accordance with
their terms (subject
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to bankruptcy, insolvency and similar standard exceptions), and any applicable
rating confirmations; or
(g) The Master Servicer shall, as to each Mortgage Loan which is secured by
the interest of the related Borrower under a Ground Lease, promptly (and in any
event within 45 days) after the Closing Date notify the related ground lessor of
the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (as to Specially Serviced Mortgage Loans) and, to
the limited extent permitted below, the Master Servicer (as to Performing
Mortgage Loans) each may (consistent with the Servicing Standard) agree to any
modification, waiver or amendment of any term of, extend the maturity of, defer
or forgive interest (including Default Interest and Post-ARD Additional
Interest) on and principal of, defer or forgive late payment charges, Prepayment
Premiums and Yield Maintenance Charges on, permit the release, addition or
substitution of collateral securing, and/or permit the release, addition or
substitution of the Borrower on or any guarantor of, any Mortgage Loan it is
required to service and administer hereunder, subject, however, to Sections 3.08
and 3.24 and, further to each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08 and
3.20(g), the Master Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in this
Section 3.20(a) with respect to, any Mortgage Loan without the consent of
the Special Servicer (it being understood and agreed that (A) the Master
Servicer shall promptly provide the Special Servicer with notice of any
Borrower request for modification, waiver or amendment and with all
information that the Special Servicer may reasonably request in order to
withhold or grant any such consent, (B) the Special Servicer shall decide
whether to withhold or grant such consent in accordance with the Servicing
Standard and (C) if any such consent has not been expressly denied within
ten Business Days of the Special Servicer's receipt from the Master
Servicer of all information reasonably requested thereby in order to make
an informed decision, such consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(f), the
Special Servicer shall not, in the case of any Specially Serviced Mortgage
Loan, agree to (or, in the case of any Performing Mortgage Loan, consent to
the Master Servicer's agreeing to) any modification, waiver or amendment of
any term of, or, in the case of any Specially Serviced Mortgage Loan, take
(or, in the case of any Performing Mortgage Loan, consent to the Master
Servicer's taking) any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would affect the amount or timing
of any related payment of principal, interest or other amount payable
thereunder or, in the Special Servicer's reasonable, good faith judgment,
would materially impair the security for such Mortgage Loan or reduce the
likelihood of timely payment of amounts due thereon, unless a material
default on such Mortgage Loan has occurred or, in the Special Servicer's
reasonable, good faith judgment, a default in respect of payment on such
Mortgage Loan is reasonably foreseeable, and such modification, waiver,
amendment or other action is reasonably likely to produce a greater
recovery to Certificateholders (as a collective whole) on a present value
basis (the relevant discounting of anticipated collections that
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will be distributable to Certificateholders to be done at the related
Mortgage Rate), than would liquidation;
(iii) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, extend (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's extending) the date on which any
Balloon Payment is scheduled to be due on any Mortgage Loan to a date
beyond the earliest of (A) the fifth anniversary of such Mortgage Loan's
Stated Maturity Date, (B) two years prior to the Rated Final Distribution
Date and (C) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property, 20 years (or, to the extent consistent with the
Servicing Standard, giving due consideration to the remaining term of the
Ground Lease, 10 years) prior to the end of the then current term of the
related Ground Lease (plus any unilateral options to extend);
(iv) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan that would result in an Adverse REMIC Event with respect to
any REMIC Pool or an Adverse Grantor Trust Event with respect to either
Grantor Trust Pool;
(v) subject to applicable law, the Mortgage Loan documents and the
Servicing Standard, neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of any term of any
Mortgage Loan unless all related fees and expenses are paid by the
Borrower;
(vi) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, permit (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's permitting) any Borrower to add or
substitute any real estate collateral for its Mortgage Loan unless the
Special Servicer shall have first (A) determined in its reasonable, good
faith judgment, based upon a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary
and prudent) conducted by an Independent Person who regularly conducts
Phase I Environmental Assessments, at the expense of the Borrower, that
such additional or substitute collateral is in compliance with applicable
environmental laws and regulations and that there are no circumstances or
conditions present with respect to such new collateral relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws or regulations and (B)
received written confirmation from each Rating Agency that such addition or
substitution of collateral will not, in and of itself, result in an Adverse
Rating Event with respect to any Class of Rated Certificates; and
(vii) the Special Servicer shall not, in the case of any Specially
Serviced Mortgage Loan, release (or, in the case of any Performing Mortgage
Loan, consent to the Master Servicer's releasing), including in connection
with a substitution contemplated by clause (v) above, any collateral
securing an outstanding Mortgage Loan, except as provided in Section
3.09(d) or Section 3.20(g), or except where a Mortgage Loan (or, in the
case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the Special Servicer's good faith and reasonable judgment,
materially and adversely affect the Net Operating
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Income being generated by or the use of the related Mortgaged Property, or
(2) there is a corresponding principal pay down of such Mortgage Loan in an
amount at least equal to the appraised value of the collateral to be
released (or substitute collateral with an appraised value at least equal
to that of the collateral to be released, is delivered), (B) the remaining
Mortgaged Property (together with any substitute collateral) is, in the
Special Servicer's good faith and reasonable judgment, adequate security
for the remaining Mortgage Loan and (C) such release would not, in and of
itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (vii) above shall not apply to any act or event (including,
without limitation, a release, substitution or addition of collateral) in
respect of any Mortgage Loan that either occurs automatically, or results from
the exercise of a unilateral option by the related Borrower within the meaning
of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the
terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a
Replacement Mortgage Loan, on the related date of substitution), and (y)
notwithstanding clauses (i) through (vii) above, neither the Master Servicer nor
the Special Servicer shall be required to oppose the confirmation of a plan in
any bankruptcy or similar proceeding involving a Borrower if, in its reasonable,
good faith judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the
Certificateholders or any other Person if the Special Servicer's analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer and in
accordance with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a),
shall not, for purposes of calculating monthly distributions and reporting
information to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit or that such interest may actually be
capitalized; provided, however, that this sentence shall not limit the rights of
the Master Servicer or the Special Servicer on behalf of the Trust to enforce
any obligations of the related Borrower under such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may, as a
condition to its granting any request by a Borrower for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Master Servicer's or the Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Borrower pay to it a reasonable or customary fee (which shall in no
event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan)
for the additional services performed in connection with such request, together
with any related costs and expenses incurred by it. All such fees collected by
the Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Mortgage Loans pursuant to this
Section 3.20 shall be in writing.
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Each of the Special Servicer and the Master Servicer shall notify the other such
party, each Rating Agency, the Trustee and the Controlling Class Representative,
in writing, of any modification, waiver, amendment or other action entered into
or taken thereby in respect of any Mortgage Loan pursuant to this Section 3.20
and the date thereof, and shall deliver to the Trustee or the related Custodian
for deposit in the related Mortgage File (with a copy to the other such party),
an original counterpart of the agreement relating to such modification, waiver,
amendment or other action, promptly (and in any event within ten Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the Special Servicer pursuant to
Section 3.20(a) above, the Special Servicer shall deliver to the Master
Servicer, the Trustee and the Rating Agencies an Officer's Certificate
certifying that all of the requirements of Section 3.20(a) have been met and
setting forth in reasonable detail the basis of the determination made by it
pursuant to Section 3.20(a)(ii); provided that, if such modification, waiver or
amendment involves an extension of the maturity of any Mortgage Loan, such
Officer's Certificate shall be delivered to the Master Servicer, the Trustee and
the Rating Agencies before the modification, waiver or amendment is agreed to.
(f) With respect to any ARD Loan after its Anticipated Repayment Date, the
Master Servicer shall be permitted, in its discretion, to waive (such waiver to
be in writing addressed to the related Borrower, with a copy to the Trustee) all
or any portion of the accrued Post-ARD Additional Interest in respect of such
ARD Loan if, prior to the related maturity date, the related Borrower has
requested the right to prepay such ARD Loan in full together with all payments
required by the related Mortgage Loan documents in connection with such
prepayment except for such accrued Post-ARD Additional Interest, provided that
(i) the Master Servicer has notified the Special Servicer in writing of any
requested waiver and provided the Special Servicer with written and electronic
information in the Master Servicer's possession regarding the affected Mortgage
Loan (such information to include, without limitation, loan documents, recent
correspondence, property operating statements, borrower financial statements and
the most recent appraisal) within five Business Days of such request, provided
that the Master Servicer will diligently pursue additional information not in
its possession which is reasonably requested by the Special Servicer to complete
its consent underwriting, and (ii) the Special Servicer has consented to such
waiver (such consent to be given or withheld in accordance with the Servicing
Standard and to be deemed given if the Special Servicer does not respond in
writing within ten Business Days after receiving from the Master Servicer all
requested information needed to complete its consent underwriting). The Master
Servicer shall prepare all documents necessary and appropriate to effect any
such waiver and shall coordinate with the related Borrower for the execution and
delivery of such documents.
(g) The Master Servicer shall not be required to seek the consent of the
Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies in order to approve the following
modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of parcels of a Mortgaged Property (provided that any
such releases are releases as to which the related Mortgage Loan documents
expressly require the mortgagee thereunder to make such releases upon the
satisfaction of certain conditions and such releases shall be made as required
by the Mortgage Loan documents); and (iii) grants of easements that do not
materially affect the use or value of a Mortgaged Property or the Borrower's
ability to make any payments with respect to the related Mortgage Loan; provided
that any such modification, waiver or amendment (w) would not in any way affect
a payment term of the Certificates, (x) would not constitute a "significant
modification" of such Mortgage Loan pursuant to Treasury Regulations Section
1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool, (y) agreeing to such modification, waiver or
amendment would be consistent with the Servicing Standard, and (z) agreeing to
such modification, waiver or
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amendment shall not violate the terms, provisions or limitations of this
Agreement or any other document contemplated hereby.
(h) The Master Servicer shall not terminate or replace, or consent to the
termination or replacement of, any property manager with respect to any
Mortgaged Property, and the Master Servicer shall not terminate or change or
consent to the termination or change of the franchise for any Mortgage Property
operated as a hospitality property, in any event without the consent of the
Special Servicer (it being understood and agreed that (A) the Master Servicer
shall promptly provide the Special Servicer with all information that the
Special Servicer may reasonably request and which information is in the
possession of the Master Servicer, in order to withhold or grant any such
consent, (B) the Special Servicer (for no additional compensation) shall decide
whether to withhold or grant such consent in accordance with the Servicing
Standard and (C) if any such consent has not been expressly denied within ten
Business Days of the Special Servicer's receipt from the Master Servicer of all
information reasonably requested thereby in order to make an informed decision,
such consent shall be deemed to have been granted).
(i) In connection with granting an extension of the maturity date of any
Mortgage Loan in accordance with Section 3.20(a), the Special Servicer, in the
case of a Specially Serviced Mortgage Loan, and the Master Servicer, in the case
of a Performing Mortgage Loan, shall each cause the related Borrower to agree,
if it has not already done so pursuant to the existing Mortgage Loan documents,
to thereafter deliver to the Special Servicer, the Trustee and the Controlling
Class Representative audited operating statements on a quarterly basis with
respect to the related Mortgaged Property, provided that the Special Servicer or
the Master Servicer, as the case may be, may, in its sole discretion, waive the
requirement that such statements be audited.
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof, and shall
deliver the related Servicing File, to the Special Servicer and shall use its
best efforts to provide the Special Servicer with all information, documents (or
copies thereof) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. To the extent such
is in the possession of the Master Servicer or any Sub-Servicer thereof, the
information, documents and records to be delivered by the Master Servicer to the
Special Servicer pursuant to the prior sentence shall include, but not be
limited to, financial statements, appraisals, environmental/engineering reports,
leases, rent rolls, title insurance policies, UCC's and tenant estoppels. The
Master Servicer shall use its best efforts to comply with the preceding two
sentences within five Business Days of the occurrence of each related Servicing
Transfer Event. No later than 10 Business Days before the Master Servicer is
required to deliver a copy of the related Servicing File to the Special
Servicer, it shall review such Servicing File and request from the Trustee any
material documents that it is aware are missing from such Servicing File.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within five Business Days, to
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the Master Servicer; and, upon giving such notice and returning such Servicing
File to the Master Servicer, the Special Servicer's obligation to service such
Mortgage Loan, and the Special Servicer's right to receive the Special Servicing
Fee with respect to such Mortgage Loan, shall terminate, and the obligations of
the Master Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master Servicer
and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan, for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Borrower generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each furnish to the
other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) In connection with the performance of its obligations hereunder, each
of the Master Servicer and the Special Servicer shall be entitled to rely upon
written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and, subject to Section 3.22(f), the Special
Servicer may enter into Sub-Servicing Agreements to provide for the performance
by third parties of any or all of their respective obligations hereunder,
provided that, in each case, the Sub-Servicing Agreement, including any
amendments thereto and modifications thereof: (i) insofar as it affects the
Trust, is consistent with this Agreement, including Section 7.01(a), in all
material respects and requires the Sub-Servicer to comply in all material
respects with all of the applicable conditions of this Agreement; (ii) provides
that if the Master Servicer or the Special Servicer, as the case may be, shall
for any reason no longer act in such capacity hereunder (including by reason of
an Event of Default), the Trustee or its designee or any other successor to the
Master Servicer or the Special Servicer, as the case may be, may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement or, alternatively, may terminate such
Sub-Servicing Agreement without cause and without payment of any penalty or
termination fee (provided, however, that each Designated Sub-Servicer Agreement
may require a termination fee in connection with any termination of the
applicable Designated Sub-Servicer
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without cause and any such termination fee shall be paid by the Trustee (in its
capacity as successor Master Servicer or Special Servicer, as the case may be)
or any other successor to the Master Servicer or the Special Servicer, as the
case may be); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii) and except with respect
to the obligations of any successor Master Servicer under the Designated
Sub-Servicer Agreements) none of the Trustee, any successor Master Servicer or
Special Servicer, as the case may be, or any Certificateholder shall have any
duties under such agreement or any liabilities arising therefrom except as
explicitly set forth herein; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such agreement with respect to such
purchased Mortgage Loan at its option and without penalty; (v) does not permit
the Sub-Servicer to enter into or consent to any modification, waiver or
amendment or otherwise take any action on behalf of the Master Servicer or
Special Servicer, as the case may be, contemplated by Section 3.20 hereof
without the consent of the Master Servicer or Special Servicer, as the case may
be; and (vi) does not permit the Sub-Servicer any greater rights of
indemnification out of the Trust Fund than those that the Master Servicer or the
Special Servicer, as the case may be, have pursuant to Section 6.03; provided
that the appointment by the Master Servicer or Special Servicer of a third-party
contractor for the purpose of performing discrete, ministerial functions shall
not be subject to this Section 3.22 (except that the Master Servicer or the
Special Servicer, as the case may be, shall remain responsible for the actions
of such third-party contractors and shall pay all fees and expenses of such
third-party contractors, unless otherwise expressly provided herein). In
addition, each Sub-Servicing Agreement entered into by the Master Servicer shall
provide that such agreement shall, with respect to any Mortgage Loan serviced
thereunder, terminate at the time such Mortgage Loan becomes a Specially
Serviced Mortgage Loan (or, alternatively, be suspended for so long as such
Mortgage Loan continues to be a Specially Serviced Mortgage Loan), and each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Mortgage Loans and REO Property and shall terminate with
respect to any such Mortgage Loan which ceases to be a Specially Serviced
Mortgage Loan. The Master Servicer and the Special Servicer shall each notify
the other, the Trustee and the Depositor in writing promptly of the appointment
by it of any Sub-Servicer. The Master Servicer and the Special Servicer shall
each 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. References in this Agreement to
actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make Advances shall
be deemed to have been advanced by the Master Servicer or the Special Servicer,
as the case may be, out of its own funds and, accordingly, such Advances shall
be recoverable by such Sub-Servicer in the same manner and out of the same funds
as if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be. Such Advances shall accrue interest in accordance with Sections
3.11(g) and/or 4.03(d), such interest to be allocable between the Master
Servicer or the Special Servicer, as the case may be, and such Sub-Servicer as
they may agree. For purposes of this Agreement, the Master Servicer and the
Special Servicer shall each be deemed to have received any payment when a
Sub-Servicer retained by it receives such payment.
(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.
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(c) The Master Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the other such party
or to the Trustee, the Certificateholders or the Trust) monitor the performance
and enforce the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including 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 Master Servicer
or the Special Servicer, as applicable, in its good faith and reasonable
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, the Master Servicer and the
Special Servicer shall each have the right to remove a Sub-Servicer retained by
it at any time it considers such removal to be in the best interests of
Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve as such
under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement unless the Trustee or other successor Master Servicer or
Special Servicer elects to terminate any such Sub-Servicing Agreement in
accordance with its terms and Section 3.22(a)(ii) hereof; provided that a
Designated Sub-Servicer Agreement may not be so terminated except for cause or
upon payment of a termination fee as may be provided in such Designated
Sub-Servicer Agreement. In any event, if a Sub-Servicing Agreement is to be
assumed by the Trustee or other successor Master Servicer or Special Servicer,
then the Master Servicer or the Special Servicer, as applicable, at its expense
shall, upon request of the Trustee, deliver to the assuming party all documents
and records relating to such Sub-Servicing Agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held on
behalf of it thereunder, and otherwise use its best efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreement to the assuming
party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of their respective 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 each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust other than those
contemplated herein.
(f) The Special Servicer shall not enter into any Sub-Servicing Agreement
unless either: (i) the Rating Agencies have confirmed in writing that entering
into such agreement will not result in an Adverse Rating Event; or (ii) such
agreement relates to one or more Mortgage Loans (including any such Mortgage
Loan(s) previously sub-serviced in accordance with this Section 3.22) that
together represent less than 25% of the aggregate outstanding principal balance
of all Specially Serviced Mortgage Loans.
(g) Each successor Master Servicer hereunder shall, except as provided in
Section 7.01(c), agree to assume the responsibilities and obligations of the
Master Servicer under the applicable Designated Sub-Servicer Agreement.
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SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depositary or the Depositary Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process established by the
Trustee for selecting a Controlling Class Representative, which process may
include the designation of the Controlling Class Representative by the Majority
Controlling Class Certificateholder by a writing delivered to the Trustee. No
appointment of any Person as a Controlling Class Representative shall be
effective until such Person provides the Trustee with written confirmation of
its acceptance of such appointment, an address and telecopy number for the
delivery of notices and other correspondence and a list of officers or employees
of such Person with whom the parties to this Agreement may deal (including their
names, titles, work addresses and telecopy numbers). Subject to the preceding
sentence, Allied Capital Corporation shall serve as the initial Controlling
Class Representative.
(b) Within ten Business Days (or as soon thereafter as practicable if the
Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the Controlling Class Representative of which a Responsible Officer
of the Trustee has actual knowledge or of receiving a request therefor from the
Master Servicer or Special Servicer, the Trustee shall deliver to the requesting
party the identity of the Controlling Class Representative and a list of each
Holder (or, in the case of Book-Entry Certificates, to the extent actually known
to a Responsible Officer of the Trustee or identified thereto by the Depositary
or the Depositary Participants, each Certificate Owner) of the Controlling
Class, including, in each case, names and addresses. With respect to such
information, the Trustee shall be entitled to conclusively rely on information
provided to it by the Holders (or, in the case of Book-Entry Certificates,
subject to Section 5.06, by the Depositary or the Certificate Owners) of such
Certificates, and the Master Servicer and the Special Servicer shall be entitled
to rely on such information provided by the Trustee with respect to any
obligation or right hereunder that the Master Servicer and the Special Servicer
may have to deliver information or otherwise communicate with the Controlling
Class Representative or any of the Holders (or, if applicable, Certificate
Owners) of the Controlling Class. In addition to the foregoing, within two
Business Days of the selection, resignation or removal of a Controlling Class
Representative, the Trustee shall notify the other parties to this Agreement of
such event.
(c) A Controlling Class Representative may at any time resign as such by
giving written notice to the Trustee and to each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling
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Class shall be entitled to remove any existing Controlling Class Representative
by giving written notice to the Trustee and to such existing Controlling Class
Representative.
(d) Once a Controlling Class Representative has been selected pursuant to
this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
party to this Agreement and each Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Controlling Class, in writing, of the
resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall be
borne by the Holders (or, if applicable, the Certificate Owners) of Certificates
of the Controlling Class, pro rata according to their respective Percentage
Interests in such Class, and not by the Trust. Notwithstanding the foregoing, if
a claim is made against the Controlling Class Representative by a Borrower with
respect to this Agreement or any particular Mortgage Loan, the Controlling Class
Representative shall immediately notify the Trustee, the Master Servicer and the
Special Servicer, whereupon (if the Special Servicer, the Master Servicer or the
Trust are also named parties to the same action and, in the sole judgment of the
Special Servicer, (i) the Controlling Class Representative had acted in good
faith, without negligence or willful misfeasance with regard to the particular
matter, and (ii) there is no potential for the Special Servicer, the Master
Servicer or the Trust to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
shall, subject to Section 6.03, assume the defense of any such claim against the
Controlling Class Representative. This provision shall survive the termination
of this Agreement and the termination or resignation of the Controlling Class
Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything in any other Section of this Agreement to the
contrary, but in all cases subject to Section 3.24(b), the Special Servicer will
not be permitted to take (or, if applicable, consent to the Master Servicer's
taking) any of the following actions unless and until the Special Servicer has
notified the Controlling Class Representative in writing and the Controlling
Class Representative has not objected in writing within ten Business Days of
having been notified thereof in writing and having been provided with all
reasonably requested information with respect thereto (provided that if such
written objection has not been received by the Special Servicer within such ten
Business Day period, then the Controlling Class Representative's approval will
be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver of a monetary term
(including the timing of payments) or any material non-monetary term of a
Specially Serviced Mortgage Loan or, if Special Servicer approval is
required under Section 3.20, of a Performing Mortgage Loan;
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(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(iv) any acceptance of a discounted payoff with respect to a Specially
Serviced Mortgage Loan;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Specially Serviced Mortgage Loan
(other than in accordance with the terms of, or upon satisfaction of, such
Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan (other than in accordance with the terms
of such Mortgage Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Mortgage Loan;
(ix) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan;
(x) any release of a Letter of Credit or a debt service reserve with
respect to any Mortgage Loan; and
(xi) changes in the property management company or, if applicable,
hotel franchise for any Mortgaged Property, to the extent lender consent is
required.
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Controlling Class Representative's response.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, such actions as the Controlling Class Representative may deem advisable
or as to which provision is otherwise made herein. Upon reasonable request, the
Special Servicer shall provide the Controlling Class Representative with any
information in the Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action; provided that such information shall also be provided, in a written
format, to the Trustee, who shall make it available for review pursuant to
Section 8.12(b).
The Master Servicer or the Special Servicer, as applicable, shall notify
the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with such Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Controlling Class Representative
prior to acting, and provisions of this Agreement requiring such shall be of no
effect, during the period prior to the initial selection of a Controlling Class
Representative and, if any Controlling Class Representative resigns or is
removed, during the period following such resignation or removal until a
replacement is selected and (ii) no advice, direction or objection from or
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by the Controlling Class Representative, as contemplated by Section 3.24(a), may
(and the Special Servicer shall ignore and act without regard to any such
advice, direction or objection that the Special Servicer has determined, in its
reasonable, good faith judgment, would) (A) require or cause the Special
Servicer to violate applicable law, the terms of any Mortgage Loan, any other
Section of this Agreement or any provision of the REMIC Provisions, including
the Special Servicer's obligation to act in accordance with the Servicing
Standard, (B) result in an Adverse REMIC Event with respect to any REMIC Pool or
an Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (C)
expose the Trust, the Depositor, the Master Servicer, the Special Servicer, any
Fiscal Agent, the Tax Administrator or the Trustee, or any of their respective
Affiliates, officers, directors, employees or agents, to any material claim,
suit or liability, or (D) materially expand the scope of the Master Servicer's
or the Special Servicer's responsibilities under this Agreement.
Furthermore, the Special Servicer shall not be obligated to obtain the
approval of the Controlling Class Representative for any actions to be taken by
the Special Servicer with respect to any particular Mortgage Loan if (i) the
Special Servicer has, in accordance with Section 3.24(a), notified the
Controlling Class Representative in writing of the various actions that the
Special Servicer proposes to take with respect to the work-out or liquidation of
such Mortgage Loan and (ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of those proposed actions
and has failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
(c) Each Certificateholder acknowledges and agrees, by its acceptance of
its Certificates, that the Controlling Class Representative may have special
relationships and interests that conflict with those of Holders of one or more
Classes of Certificates, that the Controlling Class Representative may act
solely in the interests of the Holders of the Controlling Class, that the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class, that the Controlling
Class Representative may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates, and that the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative or any director,
officer, employee, agent or principal thereof for having so acted.
(d) If this Agreement expressly provides for the Special Servicer to notify
the Master Servicer or any other party hereto regarding the Special Servicer's
giving its approval or consent with respect to any of the acts described in
clauses (i) - (xi) of Section 3.24(a), then, notwithstanding anything herein to
the contrary, the time period within which the Special Servicer must respond to
the Master Servicer or to such other party to this Agreement shall be extended,
to the extent necessary, for it to obtain the Controlling Class Representative's
approval or consent (or deemed approval or consent) in accordance with Section
3.24(a).
SECTION 3.25. Alternate Special Servicer.
If (i) to the knowledge of any Servicing Officer, the Special Servicer or
any of its direct or indirect, wholly-owned subsidiaries acquires or holds an
equity interest in, or debt secured by an equity interest in, any Borrower and
(ii) the related Mortgage Loan is or becomes a Specially Serviced Mortgage Loan,
then the Special Servicer shall promptly so notify the Trustee and each Rating
Agency and shall, solely with respect to such Mortgage Loan, within 30 days
after the satisfaction of both of the conditions set forth in clauses (i) and
(ii) of this sentence, designate an experienced servicing institution that is
acceptable to the Controlling Class Representative, to act as an alternative
special servicer (the "Alternate Special Servicer"). Promptly following such
designation, the Special Servicer shall notify the Trustee and each Rating
Agency of the Person proposed to act as the Alternate Special Servicer with
respect to such Mortgage Loan. The designated Person shall become the Alternate
Special Servicer with respect to such Mortgage Loan on the date as of which the
Trustee shall have received: (i) written confirmation from each of the Rating
Agencies that the appointment of such Person as Alternate Special Servicer for
such Mortgage Loan will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates; (ii) a written assumption of all of the Special
Servicer's duties with respect to such
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Mortgage Loan and a written certification whereby the designated Person makes
each of the representations and warranties set forth in Section 2.06(a) (subject
to any appropriate modifications to the representation and warranty set forth in
Section 2.06(a)(i)), each executed by the designated Person; and (iii) an
Opinion of Counsel (which shall not be an expense of the Trust or the Trustee)
substantially to the effect that (A) the designation of such Person to serve as
Alternate Special Servicer with respect to such Mortgage Loan is in compliance
with this Section 3.25, (B) the designated Person is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (C) the written assumption contemplated by clause (ii) of this
sentence has been duly authorized, executed and delivered by the designated
Person and (D) upon the execution and delivery of the written assumption
contemplated by clause (ii) of this sentence, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions and customary equity exceptions, that this Agreement shall
be enforceable against the designated Person in accordance with its terms, in
any event, insofar as this Agreement relates to the obligations of the Special
Servicer with respect to such Mortgage Loan; provided that no rating
confirmation pursuant to clause (i) of this sentence shall be necessary from
Fitch, if the designated Person has a special servicing rating of at least
"CSS2" from Fitch, or from S&P, if the designated Person is approved by S&P as a
special servicer for commercial mortgage loan securitizations; and provided,
further, that if no Person designated by the Special Servicer has become the
Alternate Special Servicer with respect to such Mortgage Loan within 40 days
after the satisfaction of both of the conditions set forth in clauses (i) and
(ii) of the first sentence of this Section 3.25, the Master Servicer (or, in the
case of the initial Master Servicer, an Affiliate thereof rated by Fitch at
least "CSS2" as a special servicer and approved by S&P as a special servicer for
commercial mortgage loan securitization) shall act as such Alternate Special
Servicer. Once a Person becomes the Alternate Special Servicer with respect to
such Mortgage Loan in accordance with the preceding sentence, such Person,
rather than the Special Servicer, shall be obligated to perform all of the
obligations of the Special Servicer, and shall be entitled to all of the Special
Servicing Fees, Workout Fees, Liquidation Fees and Additional Special Servicing
Compensation payable, with respect to such Mortgage Loan, and all references
herein to "Special Servicer" shall, in the case of such Mortgage Loan, mean the
Alternate Special Servicer. The Special Servicer shall be responsible for the
servicing and administration of such Mortgage Loan until an Alternate Special
Servicer has assumed responsibility for such Mortgage Loan; provided that the
Special Servicer may not agree to any waiver, modification or amendment of the
terms of such Mortgage Loan; and provided, further, that the Special Servicer
shall not be responsible for its failure to take any action with respect to a
Specially Serviced Mortgage Loan subject to this Section 3.25 so long as the
Special Servicer has complied with the requirements of this Agreement and
otherwise acted in accordance with the Servicing Standard. The Special Servicer
shall not be obligated to compensate any Alternate Special Servicer in addition
to what such Alternate Special Servicer is otherwise entitled to hereunder. If
the Special Servicer or its direct or indirect, wholly-owned subsidiary, as the
case may be, disposes of its equity interest in, and any debt secured by an
equity interest in, a Borrower, the Special Servicer may terminate the related
Alternate Special Servicer and shall, thereupon, resume acting as Special
Servicer with respect to such Borrower's Mortgage Loan; provided that if the
initial Master Servicer or an Affiliate thereof is the Alternate Special
Servicer, it shall retain the right to receive any Liquidation Fees or Workout
Fees earned (including after such termination) with respect to such Borrower's
Mortgage Loan.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Interest that is actually collected with respect to
any Performing Mortgage Loan during any Collection Period, shall be applied for
the following purposes and in the following order, in each case to the extent of
the remaining portion of such Default Interest:
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first, to pay to any Fiscal Agent, the Trustee, the Master Servicer or
the Special Servicer, in that order, any Advance Interest due and owing to
such party on outstanding Advances made thereby with respect to such
Mortgage Loan as to which such Default Interest was collected;
second, to pay any other outstanding Additional Trust Fund Expenses
(exclusive of Servicing Fees, Liquidation Fees and Workout Fees) incurred
during the Collection Period in which such Default Interest was collected
with respect to such Mortgage Loan as to which such Default Interest was
collected;
third, to reimburse the Trust for any Advance Interest paid to any
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer
since the Closing Date with respect to such Mortgage Loan as to which such
Default Interest was collected, which interest was paid from a source other
than Default Charges on such Mortgage Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expense (exclusive of Servicing Fees, Liquidation Fees and Workout Fees)
incurred and paid during the Collection Period in which such Default
Interest was collected with respect to such Mortgage Loan as to which such
Default Interest was collected, which expense was paid from a source other
than Default Charges on such Mortgage Loan; and
fifth, to apply any remaining portion of such Default Interest as part
of the Master Servicer Remittance Amount on the Master Servicer Remittance
Date next following the Collection Period during which such Default
Interest was received, subject to application pursuant to Section 3.05(a)
for any items payable out of general collections on the Mortgage Pool.
(b) Any and all late payment charges that are actually collected with
respect to any Performing Mortgage Loan during any Collection Period, shall be
applied for the following purposes and in the following order, in each case to
the extent of the remaining portion of such late payment charges:
first, to pay to any Fiscal Agent, the Trustee, the Master Servicer or
the Special Servicer, in that order, any Advance Interest due and owing to
such party on outstanding Advances made thereby with respect to such
Mortgage Loan as to which such late payment charges were collected;
second, to pay any other outstanding Additional Trust Fund Expenses
(exclusive of Servicing Fees, Liquidation Fees and Workout Fees) incurred
during the Collection Period in which such late payment charges were
collected with respect to such Mortgage Loan as to which such late payment
charges were collected;
third, to reimburse the Trust for any Advance Interest paid to any
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer
since the Closing Date with respect to such Mortgage Loan as to which such
late payment charges were collected, which interest was paid from a source
other than Default Charges on such Mortgage Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expense (exclusive of Servicing Fees, Liquidation Fees and Workout Fees)
incurred and paid during the Collection Period in which such late payment
charges were collected with respect to such Mortgage Loan as
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to which such late payment charges were collected, which expense was paid
from a source other than Default Charges on such Mortgage Loan; and
fifth, to pay any remaining portion of such late payment charges as
Additional Master Servicing Compensation to the Master Servicer.
(c) Any and all Default Charges that are actually collected with respect to
any Specially Serviced Mortgage Loan or REO Mortgage Loan during any Collection
Period, shall be applied for the following purposes and in the following order,
in each case to the extent of the remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master Servicer or
the Special Servicer, in that order, any Advance Interest due and owing to
such party on outstanding Advances made thereby with respect to such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be,
as to which such Default Charges were collected;
second, to pay any other outstanding Additional Trust Fund Expenses
(exclusive of Servicing Fees, Liquidation Fees and Workout Fees) incurred
since the applicable Initial Default Date with respect to such Specially
Serviced Mortgage Loan or REO Mortgage Loan, as the case may be, as to
which such Default Charges were collected;
third, to reimburse the Trust for any Advance Interest paid to any
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer
since the Closing Date with respect to such Specially Serviced Mortgage
Loan or REO Mortgage Loan, as the case may be, as to which such Default
Charges were collected, which interest was paid from a source other than
Default Charges on such Specially Serviced Mortgage Loan or REO Mortgage
Loan, as the case may be;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expense (exclusive of Servicing Fees, Liquidation Fees and Workout Fees)
incurred since the applicable Initial Default Date with respect to such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be,
as to which such Default Charges were collected, which expense was paid
from a source other than Default Charges on such Specially Serviced
Mortgage Loan or REO Mortgage Loan, as the case may be; and
fifth, to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
For purposes of this Section 3.26(c), the "Initial Default Date" with
respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan shall mean
the date that is 30 days following the last Due Date as of which such Mortgage
Loan or the predecessor Mortgage Loan, as the case may be, was last current
(i.e., did not experience a delinquency of 30 days or more) prior to becoming a
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be.
(d) Default charges applied to reimburse the Trust pursuant to clauses
third and fourth of any of Sections 3.26(a), 3.26(b) and 3.26(c) are intended to
be part of the Master Servicer Remittance Amount for the Master Servicer
Remittance Date next following the Collection Period during which they were
received, subject to application pursuant to Section 3.05(a) for any items
payable out of general collections on the Mortgage Pool. Default Charges applied
to reimburse the Trust pursuant to clauses third and fourth of any of Sections
3.26(a), 3.26(b) and 3.26(c) shall be
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deemed to offset payments of Advance Interest or other Additional Trust Fund
Expenses, depending on which clause is applicable, in the chronological order in
which they were made (whereupon such Advance Interest or other Additional Trust
Fund Expenses, depending on which clause is applicable, shall thereafter be
deemed to have been paid out of Default Charges).
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on deposit
in the Distribution Account for the following purposes and in the following
order of priority, in each case to the extent of the remaining portion of the
Standard Available Distribution Amount for such Distribution Date:
first, to make distributions of interest to the Holders of the Class
A-1A Certificates, the Holders of the Class A-1B Certificates and the
Holders of the Class S Certificates, up to, and pro rata as among such
Classes of Certificateholders based on, their respective Current Interest
Distribution Amounts for such Distribution Date;
second, to make distributions of interest to the Holders of the Class
A-1A Certificates, the Holders of the Class A-1B Certificates and the
Holders of the Class S Certificates, up to, and pro rata as among such
Classes of Certificateholders based on, their respective Carryforward
Interest Distribution Amounts for such Distribution Date;
third, to make distributions of principal to the Holders of the Class
A-1A Certificates and/or the Holders of the Class A-1B Certificates as
follows--
(i) prior to the occurrence of the Final Distribution Date or any
Senior Principal Distribution Cross-Over Date, sequentially to the
Holders of the Class A-1A Certificates, up to their Principal
Distribution Amount for such Distribution Date, and then to the
Holders of the Class A-1B Certificates, up to their Principal
Distribution Amount for such Distribution Date, and
(ii) on and after the occurrence of any Senior Principal Distribution
Cross-Over Date, and in any event on the Final Distribution Date, to
the Holders of the Class A-1A Certificates and the Holders of the
Class A-1B Certificates, up to, and pro rata as between such Classes
of Certificateholders based on, their respective Principal
Distribution Amounts for such Distribution Date; and
fourth, to reimburse the Holders of the Class A-1A Certificates and
the Holders of the Class A-1B Certificates for any Unfunded Principal
Balance Reductions previously incurred thereby, up to, and pro rata as
between such Classes of Certificateholders based on, their respective Loss
Reimbursement Amounts for such Distribution Date.
(b) On each Distribution Date, following the distributions on the Senior
Certificates to be made on such date pursuant to Section 4.01(a), the Trustee
shall apply any amounts remaining on deposit in the Distribution Account to make
distributions to the Holders of the respective Classes of the Subordinate
Principal Balance Certificates, in the following order and, in the case of each
such Class of Subordinate Principal Balance Certificates, up to the lesser of
(i) the total of the Current Interest Distribution Amount, the Carryforward
Interest Distribution Amount, the Principal Distribution Amount and the Loss
Reimbursement Amount with respect to such Class of Certificates for such
Distribution
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Date and (ii) the remaining portion of the Standard Available Distribution
Amount for such Distribution Date: first, to the Holders of the Class A-2
Certificates; second, to the Holders of the Class A-3 Certificates; third, to
the Holders of the Class A-4 Certificates; fourth, to the Holders of the Class
B-1 Certificates; fifth, to the Holders of the Class B-2 Certificates; sixth, to
the Holders of the Class B-3 Certificates; seventh, to the Holders of the Class
B-4 Certificates; eighth, to the Holders of the Class B-5 Certificates; ninth,
to the Holders of the Class B-6 Certificates; tenth, to the Holders of the Class
B-7 Certificates; eleventh, to the Holders of the Class B-8 Certificates;
twelfth, to the Holders of the Class C Certificates; and, thirteenth, to the
Holders of the Class D Certificates. Amounts distributable to the Holders of any
Class of Subordinate Principal Balance Certificates on any Distribution Date
pursuant to this Section 4.01(b) shall be applied:
first, to make distributions of interest to the Holders of such Class
of Certificates, up to their Current Interest Distribution Amount for such
Distribution Date;
second, to make distributions of interest to the Holders of such Class
of Certificates, up to their Carryforward Interest Distribution Amount for
such Distribution Date;
third, to make distributions of principal to the Holders of such Class
of Certificates, up to their Principal Distribution Amount for such
Distribution Date; and
fourth, to reimburse the Holders of such Class of Certificates for any
Unfunded Principal Balance Reductions previously incurred thereby, up to
their Loss Reimbursement Amount for such Distribution Date.
(c) On each Distribution Date, following the distributions on the REMIC III
Regular Interest Certificates to be made on such date pursuant to Sections
4.01(a) and 4.01(b), the Trustee shall withdraw any portion of the Standard
Available Distribution Amount for such Distribution Date then remaining on
deposit in the Distribution Account and shall distribute the full amount of such
remaining funds to the Holders of the Class R Certificates.
(d) On each Distribution Date, the Trustee shall apply, for the following
purposes and in the following order of priority, any amount then on deposit in
the Distribution Account that represents a Prepayment Premium or Yield
Maintenance Charge collected with respect to any Mortgage Loan as of the end of
the related Collection Period.
first, to make distributions of additional interest to the Holders of
the respective Classes of the Yield Maintenance Certificates, up to, and
pro rata as among such Classes of Certificateholders based on, their
respective applicable Additional Yield Amounts; and
second, to make distributions of additional interest to the Holders of
the Class S Certificates, up to the remaining portion, if any, of such
Prepayment Premium or Yield Maintenance Charge, as the case may be.
For purposes of determining the portion of any Prepayment Premium or Yield
Maintenance Charge that is distributable to the Holders of any Class of Yield
Maintenance Certificates on any Distribution Date, the applicable "Additional
Yield Amount" shall be an amount equal to the product of: (i) the amount of such
Prepayment Premium or Yield Maintenance Charge, as the case may be, that is so
distributable; multiplied by (ii) a fraction (not greater than one or less than
zero), the numerator of which is equal to the excess, if any, of (A) the
Pass-Through Rate applicable to such Class
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of Yield Maintenance Certificates for the corresponding Interest Accrual Period,
over (B) the relevant Discount Rate, and the denominator of which is equal to
the excess, if any, of (X) the Mortgage Rate for the Mortgage Loan in respect of
which such Prepayment Premium or Yield Maintenance Charge, as the case may be,
was received, over (Y) the relevant Discount Rate; multiplied by (iii) a
fraction (not greater than one or less than zero), the numerator of which is
equal to the Principal Distribution Amount with respect to such Class of Yield
Maintenance Certificates for such Distribution Date, and the denominator of
which is equal to the Total Principal Distribution Amount for such Distribution
Date.
For purposes of determining the portion of any Prepayment Premium or Yield
Maintenance Charge that is distributable to the Holders of any Class of Yield
Maintenance Certificates on any Distribution Date, the relevant "Discount Rate"
shall be the rate which, when compounded monthly, is equivalent to the Treasury
Rate when compounded semi-annually (e.g., a 6% per annum Treasury Rate would
equate to a 5.9263% per annum Discount Rate), and the "Treasury Rate" is the
yield calculated by the linear interpolation of the yields, as reported in
Federal Reserve Statistical Release H.15 Selected Interest Rates under the
heading "U.S. government securities/Treasury constant maturities" for the week
ending prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the weighted average life (calculated in accordance with
the related loan documents) of the prepaid Mortgage Loan immediately prior to
the prepayment. If Release H.15 is no longer published, the Master Servicer
shall select a comparable publication to determine the relevant Treasury Rate.
(e) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account any amounts then on deposit in the Class E Sub-Account of
the Distribution Account that represent Post-ARD Additional Interest collected
in respect of the ARD Loans during or prior to the related Collection Period and
shall distribute such amounts to the Holders of the Class E Certificates.
(f) All distributions made with respect to each Class of Certificates on
each Distribution Date shall be allocated pro rata among the Holders of such
Certificates based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions made with respect to each Class of
Certificates on each Distribution Date shall be made to the Holders of such
Certificates of record at the close of business on the related Record Date and,
in the case of each such Holder, shall be made by wire transfer of immediately
available funds to the account thereof at a bank or other entity having
appropriate facilities therefor, if such Holder shall have provided the Trustee
with wiring instructions no later than the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), and otherwise shall be made by check mailed to the address
of such Holder as it appears in the Certificate Register. The final distribution
on each Certificate (determined, in the case of a Principal Balance Certificate,
without regard to any possible future reimbursement of any portion of a
previously incurred Unfunded Principal Balance Reduction allocable to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution. Any distribution that is to be made with respect to a Principal
Balance Certificate in reimbursement of any portion of an Unfunded Principal
Balance Reduction allocable to such Certificate, which reimbursement is to occur
after the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the Holder that surrendered
such Certificate at the last address set forth for such Holder in the
Certificate Register or at any other address of which the Trustee was
subsequently notified in writing.
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(g) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depositary, as Holder thereof, and the Depositary shall be
responsible for crediting the amount of such distribution to the accounts of its
Depositary Participants in accordance with its normal procedures. Each
Depositary Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each such indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the parties hereto shall
have any responsibility therefor except as otherwise provided by this Agreement
or applicable law. The Trustee and the Depositor shall perform their respective
obligations under the Letter of Representations Among the Depositor, the Trustee
and the Initial Depositary, a copy of which Letter of Representations is
attached hereto as Exhibit C.
(h) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts previously distributed on
the Certificates in accordance with this Agreement.
(i) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date (such final distribution to be
determined, in the case of a Class of Principal Balance Certificates, without
regard to any possible future reimbursement of any portion of a previously
incurred Unfunded Principal Balance Reduction in respect of such Class), the
Trustee shall, as promptly as possible (and, in any event, no later than three
Business Days) after the related Determination Date, mail to each Holder of such
Class of Certificates of record on such date a notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date
but only upon presentation and surrender of such Certificates at the
office of the Certificate Registrar or at such other location therein
specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such
Class on such Distribution Date because of the failure of such Holder or Holders
to tender their Certificates shall, on such date, be set aside and credited to,
and shall be held uninvested in trust in, the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 4.01(i) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to
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any former Holder on any amount held in trust pursuant to this paragraph. If any
Certificates as to which notice has been given pursuant to this Section 4.01(i),
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, then, subject to applicable escheat laws, the
Trustee shall distribute to the Class R Certificateholders all unclaimed funds.
(j) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from payments or advances of interest or original issue
discount to any Certificateholder pursuant to federal withholding requirements,
the Trustee shall indicate the amount withheld to such Certificateholder.
(k) All distributions of interest made with respect to the Class S
Certificates on each Distribution Date pursuant to clause first of Section
4.01(a) shall be deemed to have first been distributed from REMIC II to REMIC
III on such Distribution Date as interest with respect to the various REMIC II
Regular Interests, up to, and pro rata as among the REMIC II Regular Interests
based on, the Class S Portion of the Current Interest Distribution Amount with
respect to each such REMIC II Regular Interest for such Distribution Date. All
distributions of interest made with respect to the Class S Certificates on each
Distribution Date pursuant to clause second of Section 4.01(a) shall be deemed
to have first been distributed from REMIC II to REMIC III on such Distribution
Date as interest with respect to the various REMIC II Regular Interests, up to,
and pro rata as among the REMIC II Regular Interests based on, the Class S
Portion of the Carryforward Interest Distribution Amount with respect to each
such REMIC II Regular Interest for such Distribution Date. In addition, all
distributions of additional interest (in the form of Prepayment Premiums and
Yield Maintenance Charges) made with respect to the Class S Certificates on each
Distribution Date pursuant to Section 4.01(d) shall be deemed to have first been
distributed from REMIC II to REMIC III on such Distribution Date as additional
interest (in the form of Prepayment Premiums and Yield Maintenance Charges) with
respect to the various REMIC II Regular Interests, pro rata in accordance with
the respective amounts of principal deemed distributed with respect to each such
REMIC II Regular Interest for such Distribution Date as provided in the
following paragraph.
All distributions made with respect to each Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(a), Section
4.01(b) or Section 4.01(d) shall be deemed to have first been distributed from
REMIC II to REMIC III on such Distribution Date with respect to the
Corresponding REMIC II Regular Interest for such Class of Certificates. In each
case, if such distribution on any such Class of Principal Balance Certificates
was a distribution of interest, of principal, of additional interest (in the
form of Prepayment Premiums and Yield Maintenance Charges) or in reimbursement
of any related Unfunded Principal Balance Reductions with respect to such Class
of Certificates, then the corresponding distribution deemed to be made on the
Corresponding REMIC II Regular Interest for such Class of Certificates pursuant
to the preceding sentence shall be deemed also to be a distribution of interest,
of principal, of additional interest (in the form of Prepayment Premiums and
Yield Maintenance Charges) or in reimbursement of any related Unfunded Principal
Balance Reductions with respect to such REMIC II Regular Interest.
The actual distributions made by the Trustee on each Distribution Date with
respect to the Certificates pursuant to Section 4.01(a), Section 4.01(b),
Section 4.01(c) (to the extent such distributions relate to the REMIC III
Residual Interest) or Section 4.01(d), as applicable, shall be deemed to have
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been so made from the amounts deemed distributed with respect to the REMIC II
Regular Interests on such Distribution Date pursuant to this Section 4.01(k).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(k), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 4.01(e), as
applicable.
(l) On each Distribution Date, immediately prior to making any actual
distributions on the Certificates pursuant to Section 4.01(a), Section 4.01(b)
or Section 4.01(c), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Trustee shall be deemed to
have made out of the Standard Available Distribution Amount for such
Distribution Date, the following distributions to REMIC II in the following
order of priority, in each case to the extent of the remaining portion of such
Standard Available Distribution Amount:
first, distributions of interest with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Current Interest Distribution Amounts
for such Distribution Date;
second, distributions of interest with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Carryforward Interest Distribution
Amounts for such Distribution Date;
third, distributions of principal with respect to all of the REMIC I
Regular Interests, up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Principal Distribution Amounts for
such Distribution Date; and
fourth, reimbursements of Unfunded Principal Balance Reductions with
respect to all of the REMIC I Regular Interests (including any REMIC I
Regular Interests whose Uncertificated Principal Balances have previously
been reduced to zero), up to, and pro rata as among the REMIC I Regular
Interests based on, their respective Loss Reimbursement Amounts for such
Distribution Date.
In addition, on each Distribution Date, immediately prior to making any
actual distributions on the REMIC III Regular Interest Certificates pursuant to
Section 4.01(d), or the corresponding deemed distributions on the REMIC II
Regular Interests pursuant to Section 4.01(k), the Trustee shall be deemed to
have distributed to REMIC II each Prepayment Premium and Yield Maintenance
Charge then on deposit in the Distribution Account that was received on any
Mortgage Loan or REO Mortgage Loan during or prior to the related Collection
Period, such distribution to be deemed made with respect to the REMIC I Regular
Interest that relates to such Mortgage Loan or REO Mortgage Loan, as the case
may be.
The distributions deemed made by the Trustee on each Distribution Date with
respect to the REMIC II Regular Interests pursuant to Section 4.01(k), as well
as the distributions actually made by the Trustee on each Distribution Date with
respect to the Certificates pursuant to Section 4.01(a), Section 4.01(b),
Section 4.01(c) (to the extent such distributions relate to the REMIC II
Residual Interest or the REMIC III Residual Interest) or Section 4.01(d), shall
be deemed to have been so made from the amounts deemed distributed with respect
to the REMIC I Regular Interests on such Distribution Date pursuant to this
Section 4.01(l). Notwithstanding the deemed distributions on the REMIC I Regular
Interests described in this Section 4.01(l), actual distributions of funds from
the Distribution Account
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shall be made only in accordance with Section 4.01(a), Section 4.01(b), Section
4.01(c), Section 4.01(d) or Section 4.01(e), as applicable.
SECTION 4.02. Statements to Certificateholders; Certain Other Reports.
(a) Based solely on information provided to the Trustee by the Master
Servicer and the Special Servicer pursuant to Sections 3.12, 4.02(b) and
4.02(c), the Trustee shall prepare (or cause to be prepared) and, on each
Distribution Date, provide or make available electronically (or, upon request,
by first class mail) to the Depositor, the Master Servicer, the Special
Servicer, the Mortgage Loan Seller, the Underwriters, the Rating Agencies, the
Controlling Class Representative, each Certificateholder and, to the extent that
the Trustee has in accordance with Section 5.06(b) confirmed the Ownership
Interest in the Certificates held thereby, each Certificate Owner a statement
substantially in the form of, and containing the information set forth in,
Exhibit E-1 hereto, including the Bond File and the Collateral Summary File (the
"Trustee Report"), detailing the distributions on such Distribution Date and the
performance, both in the aggregate and individually to the extent available, of
the Mortgage Loans and the Mortgaged Properties; provided that the Trustee need
not deliver to the Depositor, the Master Servicer, the Special Servicer, the
Mortgage Loan Seller, the Underwriters, the Rating Agencies or the Controlling
Class Representative any Trustee Report that has been made available to such
Person via the Trustee's Internet Website as provided below; and provided,
further, that the Trustee has no affirmative obligation to discover the
identities of Certificate Owners and need only react to Persons claiming to be
Certificate Owners in accordance with Section 5.06.
On each Distribution Date, the Trustee shall provide or make available
electronically (or, upon request, by first class mail) to the Depositor, the
Mortgage Loan Seller, the Underwriters, the Master Servicer, the Special
Servicer, the Rating Agencies, the Controlling Class Representative, each
Certificateholder and each Certificate Owner to which a Trustee Report was
forwarded or otherwise made available on such Distribution Date, at the same
time that the Trustee Report is delivered or otherwise made available thereto,
each file and report comprising the CMSA Investor Reporting Package (excluding
the Loan Set-Up File), to the extent received by the Trustee since the prior
Distribution Date (or, in the case of the initial Distribution Date, since the
Closing Date).
The Trustee shall have no obligation to provide the information or reports
described in this Section 4.02(a) until it has received the requisite
information or reports from the Master Servicer, and the Trustee shall not be in
default hereunder due to a delay in providing the Certificateholder Reports
caused by the Master Servicer's or Special Servicer's failure to timely deliver
any information or reports hereunder. None of the Master Servicer, the Special
Servicer or the Trustee shall be responsible for the accuracy or completeness of
any information supplied to it by a Borrower, each other or a third party, and
accepted by it in good faith, that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable. None of the Trustee, the Master
Servicer or the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Borrower, a third
party or each other.
The Trustee shall make available each month, to Certificateholders,
Certificate Owners, prospective investors and any other interested party, via
the Trustee's Internet Website, in a downloadable format, all Trustee Reports,
Bond File, Collateral Summary File (which, in each case and together with
Unrestricted Servicer Reports, if applicable, will identify each Mortgage Loan
by loan number and property name) and, with the consent or at the direction of
the Depositor, such other
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information regarding the Certificates and/or the Mortgage Loans as the Trustee
may have in its possession; provided that, unless (i) the particular report or
information has been filed with the Commission pursuant to Section 8.15 or (ii)
the Depositor has notified the Trustee that the DLJSC has sold the
Non-Registered Certificates to unaffiliated third parties, access to such
reports and information on the Trustee's Internet Website will be protected to
the same extent, and limited to the same Persons, as the Restricted Servicer
Reports. After the Trustee shall have received the notice from the Depositor
regarding the sale of the Non-Registered Certificates, as described in the
preceding sentence, the Trustee shall make the Trustee Report available to any
interested party via its fax-on-demand service. The Trustee shall make the
Restricted Servicer Reports available each month, via the Trustee's Internet
Website only, to any Certificateholder, Certificate Owner, any Person identified
by any Certificateholder or Certificate Owner as a prospective transferee of a
Certificate or interest therein, any party hereto, the Controlling Class
Representative, the Mortgage Loan Seller, any Underwriter or any Rating Agency,
upon receipt by the Trustee from such Person of a certification substantially in
the form of Exhibit L-1 or Exhibit L-2, as applicable; provided, however, that
the Trustee shall provide access to such reports to each party hereto, the
Controlling Class Representative, the Mortgage Loan Seller, each Underwriter and
each Rating Agency without requiring such certification. In addition, the
Trustee is hereby directed and authorized to make available, as a convenience to
interested parties (and not in furtherance of the distribution of the Prospectus
or the Prospectus Supplement under the securities laws), this Agreement, the
Prospectus and the Prospectus Supplement via the Trustee's Internet Website. The
Trustee will make no representations or warranties as to the accuracy or
completeness of such documents and will assume no responsibility therefor.
The Trustee's Internet Website shall be located at "www.ctslink.com/cmbs"
or at such other address as shall be specified by the Trustee from time to time
in the Trustee Report and in one or more written notices delivered to the other
parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Trustee's Internet Website and electronic bulletin board, the Trustee may
require registration and the acceptance of a disclaimer. The Trustee shall not
be liable for the dissemination of information in accordance with this
Agreement.
The Trustee shall be entitled to rely on but shall not be responsible for
the content or accuracy of any information provided by third parties for
purposes of preparing the Trustee Report and may affix thereto any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(b) By 3:00 p.m. New York City time on the second Business Day after each
Determination Date, the Master Servicer shall deliver to the Trustee the Loan
Periodic Update File, reflecting information as of the close of business on the
last day of the Collection Period, in a mutually agreeable electronic format.
Such Loan Periodic Update File and any written information supplemental thereto
shall include such information with respect to the Mortgage Loans that is
reasonably required by the Trustee for purposes of making the calculations and
preparing the reports for which the Trustee is responsible pursuant to Section
4.01, this Section 4.02, Section 4.04 or any other section of this Agreement, as
set forth in reasonable written specifications or guidelines issued by the
Trustee from time to time. Such information may be delivered by the Master
Servicer to the Trustee by telecopy or in such electronic or other form as may
be reasonably acceptable to the Trustee and the Master Servicer.
Notwithstanding the foregoing, because the Master Servicer will not receive
the Servicing Files until the Closing Date and will not have sufficient time to
review and analyze such
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Servicing Files before the initial Distribution Date, the parties agree that the
Loan Periodic Update File required to be delivered in July 2000 will be based
solely upon information generated from actual collections and from information
the Depositor delivers or causes to be delivered to the Master Servicer
(including but not limited to information prepared by third party servicers of
the Mortgage Loans with respect to the period prior to the Closing Date). The
Special Servicer shall from time to time (and, in any event, as may be
reasonably required by the Master Servicer) provide the Master Servicer with
such information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as may be necessary for the Master Servicer to prepare
each report and any supplemental information to be provided by the Master
Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(c) Within a reasonable period of time after the end of each calendar year,
the Trustee shall prepare, or cause to be prepared, and mail to each Person who
at any time during the calendar year was a Certificateholder (i) a statement
containing the aggregate information set forth on page 2 of Exhibit E-1 hereto
for such calendar year or applicable portion thereof during which such person
was a Certificateholder and (ii) such other customary information as the Trustee
deems necessary or desirable for Certificateholders to prepare their federal,
state and local income tax returns, including the amount of original issue
discount accrued on the Certificates, if applicable. The obligations of the
Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. The Master Servicer and the Special Servicer shall
promptly provide to the Depositor, the Tax Administrator and the Trustee such
information regarding the Mortgage Loans and the Mortgaged Properties as such
party may reasonably request and that has been furnished to, or may otherwise be
in the possession of, the Master Servicer or the Special Servicer, as the case
may be.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall, subject Section 4.03(c), either (i) remit from its
own funds to the Trustee for deposit into the Distribution Account an amount
equal to the aggregate amount of P&I Advances, if any, to be made in respect of
the related Distribution Date, (ii) apply amounts held in the Collection Account
for future distribution to Certificateholders in subsequent months in discharge
of any such obligation to make P&I Advances, or (iii) make P&I Advances in the
form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made. Any amounts held in the Collection Account for future
distribution and so used to make P&I Advances shall be appropriately reflected
in the Master
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Servicer's records and replaced by the Master Servicer by deposit in the
Collection Account prior to the next succeeding Master Servicer Remittance Date
(to the extent not previously replaced through the deposit of Late Collections
of the delinquent principal and interest in respect of which such P&I Advances
were made). If, as of 3:30 p.m., New York City time, on any P&I Advance Date,
the Master Servicer shall not have made any P&I Advance required to be made on
such date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the Officer's Certificate and other documentation related to a
determination of nonrecoverability of a P&I Advance pursuant to Section 4.03(c))
or shall not have remitted any portion of the Master Servicer Remittance Amount
required to be remitted on such date, then the Trustee shall provide notice of
such failure to the Master Servicer by facsimile transmission as soon as
possible, but in any event before 4:30 p.m., New York City time, on such P&I
Advance Date. If after such notice the Trustee does not receive the full amount
of such P&I Advances by 6:00 p.m., New York City time, on such P&I Advance Date,
then the Trustee shall (not later than 11:00 a.m., New York City time, on the
related Distribution Date) make, and if the Trustee fails to do so, any Fiscal
Agent shall (not later than 12:00 noon, New York City time, on the related
Distribution Date) make, the portion of such P&I Advances that was required to
be, but was not, made or remitted, as the case may be, by the Master Servicer
with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
in respect of any Distribution Date, subject to Section 4.03(c) below, shall
equal the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of any related Master Servicing
Fees and Workout Fees, due or deemed due, as the case may be, in respect of the
Mortgage Loans (including Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Mortgage Loans on their respective Due
Dates during the related Collection Period, in each case to the extent such
amount was not paid by or on behalf of the related Borrower or otherwise
collected as of the close of business on the related Determination Date;
provided that, if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then the interest portion of any P&I Advance required
to be made in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance that would
otherwise be required to be made in respect of such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which shall equal the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall
be required to be made hereunder if such P&I Advance would, if made, constitute
a Nonrecoverable P&I Advance. The determination by the Master Servicer (or, if
applicable, the Trustee or any Fiscal Agent) that it has made a Nonrecoverable
P&I Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be made by such Person in its reasonable, good
faith judgment and shall be evidenced by an Officer's Certificate delivered to
the Depositor, to the Special Servicer, to the Controlling Class Representative
and, if made by the Master Servicer, to the Trustee (on or before the related
P&I Advance Date in the case of a proposed P&I Advance), setting forth the basis
for such determination, accompanied by a copy of an Appraisal of the related
Mortgaged Property or REO Property performed within the 12 months preceding such
determination by a Qualified Appraiser, and further accompanied by any other
information, including engineers' reports, environmental surveys or similar
reports, that the Person making such determination may have obtained and that
support such
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determination. The Trustee and any Fiscal Agent shall be entitled to
conclusively rely on any nonrecoverability determination made by the Master
Servicer with respect to a particular P&I Advance. The Special Servicer shall
promptly furnish any party required to make P&I Advances hereunder with any
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as such party required to make P&I Advances may reasonably
request.
(d) The Master Servicer, the Trustee and any Fiscal Agent shall each be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (with its own
funds), for so long as such P&I Advance is outstanding (or, if such P&I Advance
was made prior to the end of any grace period applicable to the subject
delinquent Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period). Such interest with respect to any P&I
Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26,
out of any Default Charges subsequently collected on the particular Mortgage
Loan or REO Mortgage Loan as to which such P&I Advance relates; and (ii) then,
after such P&I Advance is reimbursed, but only if and to the extent that such
Default Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The Master Servicer shall reimburse itself, the Trustee or
any Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby as
soon as practicable after funds available for such purpose are deposited in the
Collection Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection was received as of the related P&I Advance Date. The Master Servicer
shall not be entitled to Advance Interest to the extent a payment is received
but is being held by the Master Servicer in suspense.
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Sections 4.01(a) and
4.01(b), the Trustee shall determine the amount, if any, by which (i) the then
aggregate of the Class Principal Balances of all the Classes of Principal
Balance Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the Class
D, Class C, Class B-8, Class B-7, Class B-6, Class B-5, Class B-4, Class B-3,
Class B-2, Class B-1, Class A-4, Class A-3 and Class A-2 Certificates shall be
reduced sequentially, in that order, until such excess is reduced to zero;
provided that, no such Class of Certificates shall have its Class Principal
Balance reduced unless and until the Class Principal Balance of each other Class
of Certificates, if any, listed in front of it has been reduced to zero; and
provided, further, that if after the foregoing reductions, the amount described
in clause (i) of the preceding sentence still exceeds the amount described in
clause (ii) of such sentence, then the respective Class Principal Balances of
the Class A-1A and Class A-1B Certificates shall be reduced on a pro rata basis
in accordance with the relative sizes of such Class Principal Balances, until
any such remaining excess is reduced to zero. All such reductions in the Class
Principal Balances of the respective Classes of the Principal Balance
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(k), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the
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REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Uncertificated Principal
Balances of REMIC II Regular Interest D, REMIC II Regular Interest C, REMIC II
Regular Interest B-8, REMIC II Regular Interest B-7, REMIC II Regular Interest
B-6, REMIC II Regular Interest B-5, REMIC II Regular Interest B-4, REMIC II
Regular Interest B-3, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-1, REMIC II Regular Interest A-4, REMIC II Regular Interest A-3 and REMIC II
Regular Interest A-2, shall be reduced sequentially, in that order, until such
excess is reduced to zero; provided that, no such REMIC II Regular Interest
shall have its Uncertificated Principal Balance reduced unless and until the
Uncertificated Principal Balance of each other REMIC II Regular Interest, if
any, listed in front of it has been reduced to zero; and provided, further, that
if after the foregoing reductions, the amount described in clause (i) of the
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then the respective Uncertificated Principal Balances of REMIC II
Regular Interest A-1A and REMIC II Regular Interest A-1B shall be reduced on a
pro rata basis in accordance with the relative sizes of such Uncertificated
Principal Balances, until any such remaining excess is reduced to zero. All such
reductions in the Uncertificated Principal Balances of the respective REMIC II
Regular Interests shall be deemed to constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(l),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to the extent
necessary to equal the Stated Principal Balance of the related Mortgage Loan or
REO Mortgage Loan, as the case may be (or, if applicable in cases involving the
substitution of multiple Replacement Mortgage Loans, the aggregate Stated
Principal Balance of each and every related Mortgage Loan and/or REO Mortgage
Loan, as the case may be), that will be outstanding immediately following such
Distribution Date. All such reductions in the Uncertificated Principal Balances
of the respective REMIC I Regular Interests shall be deemed to constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Trustee receives the necessary information from the
Master Servicer and/or Special Servicer, the Trustee shall be responsible for
performing all calculations necessary in connection with the actual and deemed
distributions to be made pursuant to Section 4.01, the preparation of the
Trustee Reports pursuant to Section 4.02(a) and the actual and deemed
allocations of Realized Losses and Additional Trust Fund Expenses to be made
pursuant to Section 4.04. The Trustee shall calculate the Standard Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or otherwise verify any information provided to it by the
Master Servicer. The calculations by the Trustee contemplated by this Section
4.05 shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms attached
hereto as Exhibits A-1 through A-6; provided, however, that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Class S, Class A, Class B-1
and Class B-2 Certificates shall initially be held and transferred through the
book-entry facilities of the Depositary. The Class S, Class A, Class B-1 and
Class B-2 Certificates will be issuable only in denominations corresponding to
initial Certificate Principal Balances (or, in the case of the Class S
Certificates, initial Certificate Notional Amounts) as of the Closing Date of
not less than $10,000 and any whole dollar denomination in excess thereof. The
other REMIC III Regular Interest Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $100,000 and any whole dollar denomination in
excess thereof. The Class R Certificates and the Class E Certificates will be
issuable only in denominations representing Percentage Interests in the related
Class of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee in its capacity as trustee hereunder by an authorized
officer. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the authorized officers of the Trustee shall be entitled to
all benefits under this Agreement, subject to the following sentence,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
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
(located as of the Closing Date at Norwest Center, Sixth and Marquette, MAC#
N9303-121, Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Trustee may
appoint, by a written instrument delivered to the other parties hereto, any
other bank or trust company to act as Certificate Registrar under such
conditions as the Trustee may prescribe, provided that the Trustee shall not be
relieved of
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any of its duties or responsibilities hereunder as Certificate Registrar by
reason of such appointment. If the Trustee resigns or is removed in accordance
with the terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the Tax Administrator shall have the right to
inspect the Certificate Register or to obtain a copy thereof at all reasonable
times, and to rely conclusively upon a certificate of the Certificate Registrar
as to the information set forth in the Certificate Register.
If three or more Certificateholders make a written request to the Trustee,
and such request states that such Certificateholders desire to communicate with
other Certificateholders with respect to their rights under this Agreement or
under the Certificates and is accompanied by a copy of the communication that
such requesting Certificateholders propose to transmit, then the Trustee shall,
within 30 days after the receipt of such request, afford (or cause any other
Certificate Registrar to afford) the requesting Certificateholders access during
normal business hours to, or deliver to the requesting Certificateholders a copy
of, the most recent list of Certificateholders held by the Certificate Registrar
(which list shall be current as of a date no earlier than 30 days prior to the
Trustee's receipt of such request). Every Certificateholder, by receiving such
access, acknowledges that neither the Certificate Registrar nor the Trustee will
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of any Certificateholder regardless of the source
from which such information was derived.
(b) No transfer, sale, pledge or other disposition of any Non-Registered
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Non-Registered Certificate is to be made
without registration under the Securities Act (other than in connection with the
initial issuance of the Certificates or a transfer of any Non-Registered
Certificate by the Depositor), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit F-1A;
or (ii) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached hereto as Exhibit F-1B and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached hereto either as Exhibit F-2A or as Exhibit F-2B; or (iii)
an Opinion of Counsel satisfactory to the Trustee to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
Master Servicer, the Special Servicer, the Tax Administrator, the Trustee, any
Fiscal Agent or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder desiring to effect a transfer, sale, pledge
or other disposition of any Non-Registered Certificate or interest therein
shall, and does hereby agree to, indemnify the Depositor, DLJSC, the Trustee,
any Fiscal Agent, the Master Servicer, the Special Servicer, the Tax
Administrator and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
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(c) No transfer of a Subordinate or Class E Certificate or any interest
therein shall be made (A) to any retirement plan or other employee benefit plan,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of such Certificate or interest therein by the prospective Transferee
would result in a violation of Section 406 of ERISA or Section 4975 of the Code
or would result in the imposition of an excise tax under Section 4975 of the
Code. Except in connection with the initial issuance of the Subordinate
Certificates and the Class E Certificates or any transfer of a Subordinate
Certificate or a Class E Certificate by the Depositor or, in the case of a
Book-Entry Subordinate Certificate, any transfer of such Certificate to a
successor Depositary or to the applicable Certificate Owner in accordance with
Section 5.03(c), the Certificate Registrar shall refuse to register the transfer
of a Subordinate Certificate or a Class E Certificate unless it has received
from the prospective Transferee, either (i) a certification to the effect that
such prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) a certification to the
effect that the purchase and continued holding of such Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel (which Opinion of Counsel shall not be an expense of
the Trustee, the Certificate Registrar or the Trust) which otherwise establish
to the reasonable satisfaction of the Trustee that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or result in
the imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached hereto as Exhibit G is
acceptable for purposes of the preceding sentence. Each Transferee of an
interest in any Book-Entry Subordinate Certificate shall be deemed to have
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and continued holding of such Certificate or interest therein
by such Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transactions Class Exemption 95-60.
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Class R Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause
(d)(ii) below to deliver payments to a Person other than such Person and,
further, to negotiate the terms of any mandatory disposition and to execute
all instruments of Transfer and do all other things necessary in connection
with any such disposition. The rights of each Person acquiring any
Ownership Interest in a Class R Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Tax Administrator and the Trustee of any
change or impending change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar
shall require delivery to it,
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and shall not register the Transfer of any Class R Certificate
until its receipt, of an affidavit and agreement substantially in
the form attached hereto as Exhibit H-1 (a "Transfer Affidavit
and Agreement"), from the proposed Transferee, representing and
warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Class R Certificate it will
endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership Interest
in a Class R Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom
such Person attempts to transfer its Ownership Interest in such
Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the
Certificate Registrar and the Trustee a certificate substantially
in the form attached hereto as Exhibit H-2 stating that, among
other things, it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing such Ownership Interest, agrees to
give the Tax Administrator and the Trustee written notice that it
is a "pass-through interest holder" within the meaning of
temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Class R
Certificate if it is, or is holding an Ownership Interest in a
Class R Certificate on behalf of, a "pass-through interest
holder".
(ii) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the provisions of this Section 5.02(d), then the
last preceding Holder of such Class R Certificate that was in compliance with
the provisions of this Section 5.02(d) shall be restored, to the extent
permitted by law, to all rights as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. None of the
Depositor, the Trustee or the Certificate Registrar shall be under any liability
to any Person for any registration of Transfer of a Class R 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.
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If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this Section 5.02(d), then, to
the extent that retroactive restoration of the rights of the preceding Holder of
such Class R Certificate as described in the preceding paragraph of this clause
(d)(ii) shall be invalid, illegal or unenforceable, the Trustee shall have the
right, but not the obligation, to cause the transfer of such Class R Certificate
to a Permitted Transferee selected by the Trustee on such terms as the Trustee
may choose, and the Trustee shall not be liable to any Person having an
Ownership Interest in such Class R Certificate or any other Person as a result
of its exercise of such discretion. Such purported Transferee shall promptly
endorse and deliver such Class R Certificate in accordance with the instructions
of the Trustee. Such Permitted Transferee may be the Trustee itself or any
Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished to it
by the other parties hereto necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Class R Certificate to any Person
who is a Disqualified Organization, 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" the REMIC I Residual Interest, the REMIC II Residual
Interest and the REMIC III Residual Interest and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Class R Certificate having as among its
record holders at any time any Person which is a Disqualified Organization, and
each of the other parties hereto shall furnish to the Tax Administrator all
information in its possession necessary for the Tax Administrator to discharge
such obligation. The Person holding such Ownership Interest shall be responsible
for the reasonable compensation of the Tax Administrator for providing such
information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee and the Tax Administrator the following:
(A) written confirmation from each Rating Agency to the effect that
the modification of, addition to or elimination of such
provisions will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the Tax Administrator, obtained at the expense of the
party seeking such modification of, addition to or elimination of
such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause any REMIC Pool to cease to qualify as a REMIC
or be subject to an entity-level tax caused by the Transfer of
any Class R Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
(e) The Trust has not been registered as an investment company under the
Investment Company Act. Accordingly, no transfer of any Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7,
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Class B-8, Class C, Class D or Class E Certificate shall be made to any Person
other than an Institutional Accredited Investor or a Qualified Institutional
Buyer, and no transfer of any Class R Certificate shall be made to any Person
other than a Qualified Institutional Buyer. If a transfer of any such
Certificate is to be made, then the Trustee shall require, in order to assure
compliance with the foregoing, that the prospective transferee of such
Certificate (or the transferor on its behalf) certify in writing that the
prospective transferee is a Qualified Institutional Buyer or, alternatively, but
solely in the case of a Class B-3, Class B-4, Class B-5, Class B-6, Class B-7,
Class B-8, Class C, Class D or Class E Certificate, an Institutional Accredited
Investor.
(f) If a Person is acquiring any Subordinate or Class E Certificate as a
fiduciary or agent for one or more accounts, such Person shall be required to
deliver to the Certificate Registrar a certification to the effect that, and
such other evidence as may be reasonably required by the Trustee to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the applicable foregoing acknowledgments,
representations, warranties, certifications and/or agreements with respect to
each such account as set forth in Subsections (b), (c), (d) and/or (e), as
appropriate, of this Section 5.02.
(g) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(h) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(i) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(j) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(k) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(l) The Certificate Registrar or the Trustee shall provide to each of the
other parties hereto, upon reasonable written request and at the expense of the
requesting party, an updated copy of the Certificate Register.
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SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A, Class B-1 and Class B-2 Certificates shall, in
the case of each Class thereof, initially be issued as one or more Certificates
registered in the name of the Depositary or its nominee and, except as provided
in Section 5.03(c), transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depositary that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and, subject to
Section 5.02(c), transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depositary and, except as
provided in Section 5.03(c) below, shall not be entitled to fully registered,
physical Certificates ("Definitive Certificates") in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depositary Participant or indirect participating
brokerage firm representing each such Certificate Owner. Each Depositary
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of indirect participating
brokerage firms for which it acts as agent in accordance with the Depositary's
normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Trustee, any Fiscal Agent and the Certificate Registrar may
for all purposes, including the making of payments due on the Book-Entry
Certificates, deal with the Depositary 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
Depositary Participants and indirect participating brokerage firms representing
such Certificate Owners. Multiple requests and directions from, and votes of,
the Depositary as Holder of the Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with respect
to different Certificate Owners. The Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depositary of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depositary is no longer willing or able to
discharge properly its responsibilities with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depositary with respect to any Class of Book-Entry Certificates (or any
portion of any Class thereof), the Certificate Registrar shall notify all
affected Certificate Owners, through the Depositary, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of any Class of Book-Entry Certificates (or any portion of any Class
thereof) by the Depositary, accompanied by registration instructions from the
Depositary for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Tax Administrator, the Trustee or 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 Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
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and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the reasonable 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 presentment for registration of transfer, the Depositor, the
Master Servicer, the Special Servicer, the Tax Administrator, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of any of them may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Special Servicer, the Tax Administrator, the Trustee, any Fiscal
Agent, the Certificate Registrar or any agent of any of them shall be affected
by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its acquisition of
an Ownership Interest in the Book-Entry Certificates to agree to comply with the
transfer requirements of Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certificate of such Person which shall be
substantially in the form of paragraph 1 of Exhibit L-1 hereto (or such other
form as shall be reasonably acceptable to the Trustee) and shall specify the
Class and Certificate Principal Balance or Certificate Notional Amount, as the
case may be, of the Book-Entry Certificate beneficially owned; provided,
however, that the Trustee shall not knowingly recognize such Person as a
Certificate Owner if such Person, to the knowledge of a Responsible Officer of
the Trustee, acquired its Ownership Interest in a Book-Entry Certificate in
violation of Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depositary, Depositary Participants and/or indirect participating
brokerage firms for which Depositary Participants act as agents, with respect to
the identity of a Certificate Owner. The Trustee shall exercise its reasonable
discretion in making any determination under this Section 5.06(b)
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and shall afford any Person providing information with respect to its beneficial
ownership of any Book-Entry Certificate an opportunity to resolve any
discrepancies between the information provided and any other information
available to the Trustee.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicer and the
Special Servicer.
The Depositor, the Master 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 Master Servicer
and the Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer.
Subject to the following paragraph, each of the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation, bank, trust company, partnership,
limited liability company, association or other legal entity under the laws of
the jurisdiction wherein it was organized, and each shall obtain and preserve
its qualification to do business as a foreign entity in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case, any Person resulting from any
merger or consolidation to which the Depositor, the Master Servicer or the
Special Servicer shall be a party, or any Person succeeding to the business of
the Depositor, the Master Servicer or the Special Servicer, shall be the
successor of the Depositor, the Master Servicer or the Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) such succession will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency) and (ii) such successor or Surviving Person makes
the applicable representations and warranties set forth in Section 2.05 (in the
case of a successor or surviving Person to the Master Servicer) or Section 2.06
(in the case of a successor or surviving person to the Special Servicer), as
applicable.
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, and the Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer shall be
under any liability to the Trust, the Trustee or the Certificateholders for any
action taken or not taken in good faith pursuant to this Agreement or for errors
in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer or the Special Servicer against any liability to
the Trust, the Trustee or the Certificateholders for the breach of a
representation or warranty made by such party herein, or against any expense or
liability specifically required to be borne by such party without right of
reimbursement pursuant to the terms hereof, or against any liability which would
otherwise be imposed
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by reason of misfeasance, bad faith or negligence in the performance of, or
reckless disregard of, such party's obligations or duties hereunder. The
Depositor, the Master Servicer, the Special Servicer, and any director, member,
manager, officer, employee or agent of any such party 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
Master Servicer, the Special Servicer, and any director, member, manager,
officer, employee or agent of any such party, shall be indemnified and held
harmless by the Trust out of the Collection Account against any loss, liability,
cost or expense (including reasonable legal expenses) incurred in connection
with any legal action relating to this Agreement or the Certificates, other than
any loss, liability, cost or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof or otherwise incidental to the performance
of obligations and duties hereunder, including, in the case of the Master
Servicer or Special Servicer, the prosecution of an enforcement action in
respect of any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement); or (ii) incurred in connection with any legal action against such
party resulting from any breach of a representation or warranty made herein, any
misfeasance, bad faith or negligence in the performance of, or reckless
disregard of, obligations or duties hereunder or any willful or negligent
violation of applicable law. None of the Depositor, the Master Servicer or the
Special Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, except in the case of a legal action the costs of which it
is specifically required hereunder to bear, in its opinion does not involve it
in any ultimate expense or liability; provided, however, that the Depositor, the
Master Servicer or the Special Servicer may in its discretion undertake any such
action which it may reasonably deem necessary or desirable with respect to the
enforcement and/or protection of the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer and the Special Servicer shall be entitled to be reimbursed therefor
from the Collection Account as provided in Section 3.05(a).
In addition, neither the Master Servicer nor the Special Servicer shall
have any liability with respect to, and each shall be entitled to rely as to the
truth of the statements made and the correctness of the opinions expressed
therein on, any certificates or opinions furnished to the Master Servicer or the
Special Servicer, as the case may be, and conforming to the requirements of this
Agreement. Each of the Master Servicer and the Special Servicer may rely in good
faith on information provided to it by the other (unless the Master Servicer and
the Special Servicer are the same Person or Affiliates) and by the Borrowers,
and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer nor the Special Servicer shall be obligated to
commence any legal action to enforce any rights or remedies of the Trust
relating to or arising from, or otherwise incur any liabilities, costs, charges,
fees or other expenses relating to or arising from, any breach by the Trustee,
the Tax Administrator, any Fiscal Agent or the Depositor in this Agreement.
SECTION 6.04. Resignation of Master Servicer and Special Servicer.
The Master Servicer and the Special Servicer may each resign from the
obligations and duties hereby imposed on it, upon a determination that its
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it (the other activities of the Master Servicer or the Special
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Servicer, as the case may be, so causing such a conflict being of a type and
nature carried on by the Master Servicer or the Special Servicer, as the case
may be, at the date of this Agreement). Any such determination requiring the
resignation of the Master Servicer or the Special Servicer, as applicable, shall
be evidenced by an Opinion of Counsel to such effect which shall be delivered to
the Trustee. Unless applicable law requires the Master Servicer's or the Special
Servicer's (as the case may be) resignation to be effective immediately, and the
Opinion of Counsel delivered pursuant to the prior sentence so states, no such
resignation shall become effective until the Trustee or other successor shall
have assumed the responsibilities and obligations of the resigning party in
accordance with Section 6.06 or Section 7.02 hereof; provided that, if no
successor master servicer or special servicer, as applicable, shall have been so
appointed and have accepted appointment within 90 days after the Master Servicer
or Special Servicer, as the case may be, has given notice of such resignation,
the resigning Master Servicer or Special Servicer, as applicable, may petition
any court of competent jurisdiction for the appointment of a successor master
servicer or special servicer, as applicable.
In addition, the Master Servicer and the Special Servicer shall each have
the right to resign at any other time provided that (i) a willing successor
thereto (including any such successor proposed by the resigning party)
reasonably acceptable to the Depositor and the Trustee has been found, (ii) each
of the Rating Agencies confirms to the Trustee in writing that the successor's
appointment will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment prior
to the effectiveness of such resignation.
Neither the Master Servicer nor the Special Servicer shall be permitted to
resign except as contemplated above in this Section 6.04. Consistent with the
foregoing, none of the Master Servicer or the Special Servicer shall (except in
connection with any resignation thereby permitted pursuant to the prior
paragraph or as otherwise expressly provided herein, including the provisions of
Section 3.11(a), Section 3.22 and/or Section 6.02) assign or transfer any of its
rights, benefits or privileges hereunder to any other Person or delegate to,
subcontract with, or authorize or appoint any other Person to perform any of the
duties, covenants or obligations to be performed by it hereunder. If, pursuant
to any provision hereof, the duties of the Master Servicer or the Special
Servicer are transferred to a successor thereto, the entire amount of
compensation payable to the Master Servicer or the Special Servicer as the case
may be, that accrues pursuant hereto from and after the date of such transfer
shall be payable to such successor.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Trustee, the Controlling Class Representative and each Rating
Agency, upon reasonable notice, during normal business hours access to all
records maintained by it in respect of its rights and obligations hereunder and
access to such of its officers as are responsible for such obligations. Upon
reasonable request, the Master Servicer and the Special Servicer shall each
furnish the Depositor and the Trustee with its most recent publicly available
annual audited financial statements (or, if not available, the most recent
publicly available audited annual financial statements of its corporate parent)
and such other information as is publicly available regarding its business,
affairs, property and condition, financial or otherwise; provided that none of
the Depositor or the Trustee may disclose the contents of such financial
statements or other information to non-affiliated third parties (other than
accountants, attorneys, financial advisors and other representatives retained to
help it evaluate such financial statements or other information), unless it is
required to do so under applicable securities laws or is otherwise compelled to
do so as a
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matter of law. The Master Servicer and the Special Servicer may each affix to
any such information described in this Section 6.05 provided by it any
disclaimer it deems appropriate in its reasonable discretion. The Depositor may,
but is not obligated to, enforce the obligations of the Master 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 Master Servicer or the
Special Servicer hereunder or exercise the rights of the Master Servicer or the
Special Servicer hereunder; provided, however, that none of the Master Servicer
or the Special Servicer shall be relieved of any of its 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
Master Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Designation of Special Servicer by the Controlling Class.
The Holder or Holders of Certificates representing more than 50% of the
Class Principal Balance of the Controlling Class may at any time and from time
to time designate a Person (other than the Trustee) to replace any existing
Special Servicer or any Special Servicer that has resigned or otherwise ceased
to serve as Special Servicer. Such Holder or Holders shall so designate a Person
to so serve as successor Special Servicer by the delivery to the Trustee, the
Master Servicer and the existing Special Servicer of a written notice stating
such designation. The Trustee shall, promptly after receiving any such notice,
deliver to the Rating Agencies an executed Notice and Acknowledgment in the form
attached hereto as Exhibit I-1. The designated Person shall become the Special
Servicer on the date as of which the Trustee shall have received: (i) written
confirmation from each of the Rating Agencies that the appointment of such
Person will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates; (ii) an Acknowledgment of Proposed Special Servicer in the
form attached hereto as Exhibit I-2, executed by the designated Person; and
(iii) an Opinion of Counsel (which shall not be an expense of the Trustee or the
Trust) substantially to the effect that (A) the designation of such Person to
serve as Special Servicer is in compliance with this Section 6.06, (B) the
designated Person is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (C) the Acknowledgment of
Proposed Special Servicer has been duly authorized, executed and delivered by
the designated Person and (D) upon the execution and delivery of the
Acknowledgment of Proposed Special Servicer, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions and customary equity exceptions, that this Agreement shall
be enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have been terminated simultaneously
with such designated Person's becoming the Special Servicer hereunder; provided
that (i) the terminated Special Servicer shall be entitled to receive, in
connection with its termination, payment out of the Certificate Account of all
of its accrued and unpaid Special Servicing Fees and reimbursement from the
successor Special Servicer of all outstanding Servicing Advances made by the
terminated Special Servicer and all unpaid Advance Interest accrued on such
outstanding Servicing Advances (in which case the successor Special Servicer
shall be deemed to have made such Servicing Advances at the same time that the
terminated Special Servicer had actually made them), (ii) the resigning or
terminated Special Servicer shall be entitled to any Workout Fees thereafter
received on any Mortgage Loans that were Corrected Mortgage Loans at the time of
the termination (but only if and to the extent permitted by Section 3.11(c)),
and (iii) such Special Servicer shall continue to be entitled to the benefits of
Section 6.03, notwithstanding any such termination; and provided, further, that
the terminated Special Servicer shall continue to be obligated to pay and
entitled to receive all other amounts accrued or owing by or to it under this
Agreement on or prior to the effective date of such termination. Such terminated
Special Servicer shall cooperate with the
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Trustee and the replacement Special Servicer in effecting the transfer of the
terminated Special Servicer's responsibilities and rights hereunder to its
successor, including the transfer within two Business Days to the replacement
Special Servicer for administration by it of all cash amounts that at the time
are or should have been credited by the Special Servicer to the REO Account or
to any Servicing Account or Reserve Account or should have been delivered to the
Master Servicer or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or REO Property. If the termination of the Special
Servicer was without cause, the reasonable out-of-pocket costs and expenses of
any such transfer shall in no event be paid out of the Trust Fund, and instead
shall be paid by the successor Special Servicer or the Holders of the
Controlling Class that voted to remove the Special Servicer, as such parties may
agree. If the Controlling Class of Certificates are Book-Entry Certificates,
then the rights set forth in this Section 6.06 with respect to replacing the
Special Servicer may be exercised by the related Certificate Owners holding
beneficial ownership of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class.
SECTION 6.07. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate with (except as otherwise set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take any action (including
for this purpose, omitting to take a particular action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, be considered by other
Persons to violate the Servicing Standard, then the Master Servicer or the
Special Servicer may (but need not) seek the approval of the Certificateholders
to such action by delivering to the Trustee a written notice that (a) states
that it is delivered pursuant to this Section 6.07, (b) identifies the
Percentage Interest in each Class of Certificates beneficially owned by the
Master Servicer or the Special Servicer, as the case may be, or by an Affiliate
thereof and (c) describes in reasonable detail the action that the Master
Servicer or the Special Servicer, as the case may be, proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than the Master Servicer and its Affiliates or the Special Servicer and
its Affiliates, as appropriate), together with a request for approval by the
Certificateholders of each such proposed action. If at any time
Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Trustee shall
be entitled to reimbursement from the Master Servicer or the Special Servicer,
as applicable, for the reasonable expenses of the Trustee incurred pursuant to
this paragraph. It is not the intent of the foregoing provision that the Master
Servicer or the Special Servicer be permitted to invoke the procedure set forth
herein with respect to routine servicing matters arising hereunder, but rather
in the case of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the Collection
Account any amount required to be so deposited under this Agreement, which
failure continues unremedied for one Business Day following the date on
which such deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or the Collection Account, or to remit to the Master Servicer for
deposit into the Collection Account, any amount required to be so deposited
or remitted under this Agreement, which failure continues unremedied for
one Business Day following the date on which such deposit or remittance, as
the case may be, was first required to be made;
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made on such date or, on any Master
Servicer Remittance Date, the full amount of the Master Servicer Remittance
Amount and any Compensating Interest Payment required to be remitted on
such date, which failure continues unremedied until 6:00 p.m. (New York
City time) on such P&I Advance Date or Master Servicer Remittance Date, as
the case may be; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date on
which notice shall have been given to the Master Servicer by the Trustee as
provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or request the
Master Servicer to make) any Servicing Advance required to be made by it
hereunder, which Servicing Advance remains unmade for a period of three
Business Days following the date on which notice has been given to the
Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement, which
failure continues unremedied for a period of 30 days (or, in the case of
payment of insurance premiums, for a period of 15 days) after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that with respect to any such breach
which is not curable within such 30-day period, the Master 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 Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such failure
within the initial 30-day period and has provided the Trustee
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with an Officer's Certificate certifying that it has diligently pursued,
and is continuing to pursue, a full cure; or
(vii) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement that
materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 60 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the Master
Servicer or the Special Servicer, as the case may be, with a copy to each
other party hereto, by the Holders of Certificates entitled to at least 25%
of the Voting Rights; or
(viii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days; or
(ix) the Master 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, marshalling
of assets and liabilities or similar proceedings of or relating to it or of
or relating to all or substantially all of its property; or
(x) the Master 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
(xi) the Trustee shall have received written notice from Fitch to the
effect that the continuation of the Master Servicer in such capacity (A)
would result in a qualification, downgrade or withdrawal of one or more
ratings assigned by Fitch to any Class of Certificates or (B) would result
or has resulted in any rating assigned by Fitch otherwise becoming the
subject of a "negative" credit watch, and in any event such notice is not
rescinded within 90 days (or such longer period as would not, as confirmed
by Fitch in writing, result in an Adverse Rating Event) following the
delivery of such notice; or
(xii) the Trustee shall have received written notice from Fitch to the
effect that the continuation of the Special Servicer in such capacity would
result in a qualification, downgrade or withdrawal of one or more ratings
assigned by Fitch to any Class of Certificates; or
(xiii) one or more ratings assigned by Fitch to the Certificates shall
have been qualified, downgraded or withdrawn as a result of the Master
Servicer or Special Servicer, as the case may be, acting in such capacity;
or
(xiv) the Master Servicer or the Special Servicer is removed from
S&P's approved master servicer list or special servicer list, as the case
may be, and the ratings of any of the Certificates by S&P are downgraded,
qualified or withdrawn in connection with the removal.
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When a single entity acts as Master Servicer and Special Servicer, or in
any two of the foregoing capacities, an Event of Default (other than an event
described in clauses (xi), (xii) and (xiii) above) in one capacity shall
constitute an Event of Default in both such capacities.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and Trustee each may, and at the written direction of the Holders of
Certificates entitled to not less than 25% of the Voting Rights or if the
relevant Event of Default is one described in any of clauses (iii) and (viii)
through (xiii) of Section 7.01(a), the Trustee shall (subject to applicable
bankruptcy or insolvency law in the case of clauses (viii) through (x) of
Section 7.01(a)), terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Each of the Master
Servicer and the Special Servicer agrees that, if it is terminated pursuant to
this Section 7.01(b), it shall promptly (and in any event no later than ten
Business Days subsequent to its receipt of the notice of termination) provide
the Trustee with all documents and records requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall otherwise cooperate with the Trustee in
effecting the termination of the Master Servicer's or Special Servicer's, as the
case may be, responsibilities and rights hereunder, including the transfer
within two Business Days to the Trustee for administration by it of all cash
amounts that at the time are or should have been credited by the Master Servicer
to the Collection Account, the Distribution Account or any Servicing Account or
Reserve Account held by it (if it is the Defaulting Party) or by the Special
Servicer to the REO Account, the Collection Account or any Servicing Account or
Reserve Account held by it (if it is the Defaulting Party) or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property (provided, however, that the Master Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b), continue to
be obligated to pay and entitled to receive all amounts accrued or owing by or
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). Any costs or expenses (including
those of any other party hereto) incurred in connection with any actions to be
taken by the Master Servicer or Special Servicer pursuant to this paragraph
shall be borne by the Master Servicer or Special Servicer, as the case may be
(and, in the case of the Trustee's costs and expenses, if not paid within a
reasonable time, shall be borne by the Trust out of the Collection Account).
(c) Notwithstanding Section 7.01(b), if the Defaulting Party is the initial
Master Servicer, and if on or before the effective date of any termination
pursuant to Section 7.01(b) the initial Master Servicer procures a qualified
Person that is willing to act as the successor Master Servicer, then the Trustee
shall appoint such Person to act as the successor Master Servicer; provided that
(i) such
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Person is reasonably acceptable to the Trustee, (ii) such Person accepts such
appointment, (iii) each Rating Agency confirms in writing that such Person's
appointment as Master Servicer will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, and (iv) the initial or successor
Master Servicer pays all costs and expenses in connection with such transfer.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer resigns
pursuant to the first paragraph of Section 6.04 or receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to Sections
6.06 and 7.01(c), be the successor in all respects to the Master Servicer or the
Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer or the Special Servicer, as the
case may be, by the terms and provisions hereof, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances; provided, however, that any failure to perform such duties
or responsibilities caused by the Master Servicer's or the Special Servicer's,
as the case may be, failure to cooperate or to provide information or monies as
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee or any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation which the resigning or
terminated party would have been entitled to for future services rendered if the
resigning or terminated party had continued to act hereunder. Notwithstanding
the above, if it is unwilling to so act, the Trustee may (and, if it is unable
to so act, or if the Trustee is not approved as an acceptable master servicer or
special servicer, as the case may be, by each Rating Agency, or if the Holders
of Certificates entitled to a majority of all the Voting Rights so request in
writing, the Trustee shall), subject to Section 6.06 or Section 7.01(c), as
applicable, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established and qualified institution as the successor to the
Master Servicer or the Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that such appointment does not result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in writing
to the Trustee by each Rating Agency). No appointment of a successor to the
Master Servicer or the Special Servicer hereunder shall be effective until the
assumption by such successor of all its responsibilities, duties and liabilities
hereunder, and pending such appointment and assumption, the Trustee shall act in
such capacity as hereinabove provided. In connection with any such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01, any appointment of a successor to the Master
Servicer or the Special Servicer pursuant to Section 6.04,
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7.01(c) or 7.02 or the effectiveness of any designation of a new Special
Servicer pursuant to Section 6.06, the Trustee shall give prompt written notice
thereof to Certificateholders at their respective addresses appearing in the
Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the Voting
Rights allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, that an Event of Default
under clause (i), clause (ii), clause (iii), clause (xi), clause (xii) or clause
(xiii) of Section 7.01(a) may be waived only by all of the Certificateholders of
the affected Classes. Upon any such waiver of an Event of Default, and payment
to the Trustee of all reasonable costs and expenses incurred by the Trustee in
connection with such default prior to its waiver (which costs shall be paid by
the party requesting such 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 registered in the name of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right (exercisable subject to Section
8.01(a)), in its own name and as trustee of an express trust, to take all
actions now or hereafter existing at law, in equity or by statute to enforce its
rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
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ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) 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), the Trustee shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible or liable
for the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Master Servicer, the Special Servicer, any actual or prospective
Certificateholder or Certificate Owner or either Rating Agency, 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 or waiver of all 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% (or,
as to any particular matter, any higher percentage as may be specifically
provided for hereunder) of the Voting Rights relating to the time, method
and place
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of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement.
(iv) The Trustee shall not be required to take action with respect to,
or be deemed to have notice or knowledge of, any default or Event of
Default (except an Event of Default under Section 7.01(a)(xi)(A) or Section
7.01(a)(xii) or the Master Servicer's failure to deliver any monies,
including P&I Advances, or to provide any report, certificate or statement,
to the Trustee when required pursuant to this Agreement) unless a
Responsible Officer of the Trustee shall have received written notice or
otherwise have actual knowledge thereof. Otherwise, the Trustee may
conclusively assume that there is no such default or Event of Default.
(v) 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 as expressly provided in Section 2.01(c) or Section 2.01(e) or
in its capacity as successor Master Servicer or successor Special Servicer,
(A) to cause 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 cause the maintenance of
any such recording or filing or depositing or to any rerecording, refiling
or redepositing of any thereof, (B) to cause the maintenance of any
insurance, and (C) to confirm or verify the truth, accuracy or contents of
any reports or certificates of the Master Servicer, the Special Servicer,
any actual or prospective or any Certificateholder or Certificate Owner or
either Rating Agency, delivered to the Trustee pursuant to this Agreement
reasonably believed by the Trustee to be genuine and without error and to
have been signed or presented by the proper party or parties.
(vi) For as long as the Person that serves as Trustee hereunder also
serves as Custodian, Certificate Registrar and/or Tax Administrator, the
protections, immunities and indemnities afforded to the Trustee hereunder
shall also be afforded to such Person in its capacity as Custodian,
Certificate Registrar and/or Tax Administrator, as the case may be.
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, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without error
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice or
opinion of such 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, 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
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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; provided,
however, that nothing contained herein shall relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been
waived or 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) neither the Trustee nor any Fiscal Agent appointed thereby shall
be personally liable for any action reasonably taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after the
waiver or 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 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require a reasonable indemnity against such
expense or liability as a condition to taking any such action;
(vi) except as contemplated by Section 8.06 and/or Section 8.14, the
Trustee shall not be required to give any bond or surety in respect of the
execution of the trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested in it
by this Agreement or perform any of its duties hereunder either directly or
by or through agents or attorneys-in-fact, provided that the use of agents
or attorneys-in-fact shall not be deemed to relieve the Trustee of any of
its duties and obligations hereunder (except as expressly set forth
herein);
(viii) neither the Trustee nor any Fiscal Agent appointed thereby
shall be responsible for any act or omission of the Master Servicer or the
Special Servicer (unless the Trustee is acting as Master Servicer or
Special Servicer, as the case may be) or of the Depositor.
(ix) neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s)
and/or Opinions of Counsel described in said Article applicable with
respect to changes in registration or record ownership of Certificates in
the Certificate Register and to examine the same to determine substantial
compliance with the express requirements of this Agreement; and the Trustee
and Certificate Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depositary or
between or among Depositary Participants or beneficial owners of the
Certificates, made in violation of applicable restrictions except for its
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failure to perform its express duties in connection with changes in
registration or record ownership in the Certificate Register.
SECTION 8.03. Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
statements attributed to, and the representations and warranties of, the Trustee
and/or any Fiscal Agent in Article II, and the signature of the Trustee set
forth on each outstanding Certificate) shall not be taken as the statements of
the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal Agent shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicer or the Special Servicer (in each
case, unless the Trustee is acting in such capacity). Neither the Trustee nor
any Fiscal Agent shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee or
such Fiscal Agent, as the case may be, hereunder) or the validity, priority,
perfection or sufficiency of any security, lien or security interest granted to
it hereunder or the filing of any financing statements or continuation
statements, except to the extent set forth in Section 2.01(c) and Section
2.01(e) or to the extent the Trustee is acting as Master Servicer or Special
Servicer and the Master Servicer or Special Servicer, as the case may be, would
be so responsible hereunder. The Trustee shall not be required to record this
Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee (in its individual or any other capacity), any Fiscal Agent or
any Affiliate of either of them may become the owner or pledgee of Certificates
with (except as otherwise provided in the definition of "Certificateholder") the
same rights it would have if it were not the Trustee, such Fiscal Agent or an
Affiliate of either of them, as the case may be.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee and Fiscal Agent.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, as compensation for
all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties of
the Trustee hereunder. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee shall accrue during each calendar month, commencing with June
2000, at the Trustee's Fee Rate on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan immediately
following the Distribution Date in such calendar month (or, in the case of June
2000, on a principal amount equal to the Cut-off Date Principal Balance of the
particular Mortgage Loan), whether or not interest is actually collected on each
Mortgage Loan
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and REO Mortgage Loan. With respect to each Mortgage Loan and REO Mortgage Loan,
the Trustee's Fee shall accrue from time to time on a 30/360 Basis. The
Trustee's Fees (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) shall constitute the
Trustee's sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the Trustee
shall be entitled to be indemnified and held harmless out of Trust Fund for and
against any loss, liability, claim or expense (including costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement) arising out of, or incurred in connection with, this
Agreement, the Certificates, the Mortgage Loans (unless it incurs any such
expense or liability in the capacity of successor Master Servicer or Special
Servicer, in which case such expense or liability will be reimbursable thereto
in the same manner as it would be for any other Master Servicer or Special
Servicer, as the case may be) 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, if (but only if) such loss, liability, claim or expense constitutes
an "unanticipated expense" within the meaning of Treasury regulation Section
1.860G-1(b)(3)(ii); provided, however, that neither the Trustee nor any of the
other above specified Persons shall be entitled to indemnification pursuant to
this Section 8.05(b) for (1) allocable overhead, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, (2) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (3)
any loss, liability, claim or expense incurred by reason of any breach on the
part of the Trustee of any of its representations, warranties or covenants
contained herein or any willful misfeasance, bad faith or negligence in the
performance of, or reckless disregard of, the Trustee's obligations and duties
hereunder.
(c) Each of the Master Servicer and the Special Servicer shall indemnify
the Trustee and any Fiscal Agent for and hold each of them harmless against any
loss, liability, claim or expense that is a result of the Master Servicer's or
the Special Servicer's, as the case may be, negligent acts or omissions in
connection with this Agreement, including the negligent use by the Master
Servicer or the Special Servicer, as the case may be, of any powers of attorney
delivered to it by the Trustee pursuant to the provisions hereof and the
Mortgage Loans serviced by the Master Servicer or the Special Servicer, as the
case may be; provided, however, that, if the Trustee has been reimbursed for
such loss, liability, claim or expense pursuant to Section 8.05(b), or any
Fiscal Agent has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.13, then the indemnity in favor of such Person provided
for in this Section 8.05(c) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(d) Each of the Trustee and any Fiscal Agent shall indemnify the Master
Servicer and the Special Servicer for and hold each of them harmless against any
loss, liability, claim or expense that is a result of the Trustee's or such
Fiscal Agent's, as the case may be, negligent acts or omissions in connection
with this Agreement; provided, however, that if the Master Servicer or the
Special Servicer has been reimbursed for such loss, liability, claim or expense
pursuant to Section 6.03, then the indemnity in favor of such Person provided
for in this Section 8.05(d) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this Agreement or
the resignation or removal of the Trustee, any Fiscal Agent, the Master Servicer
or the Special Servicer as regards rights and obligations prior to such
termination, resignation or removal.
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SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank, trust
company or association organized and doing business under the laws of the United
States of America or any State thereof or the District of Columbia, authorized
under such laws to exercise trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation, bank, trust company or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
bank, trust company or association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
addition, the Trustee shall at all times meet the requirements of Section
26(a)(1) of the Investment Company Act. Furthermore, the Trustee shall at all
times maintain a long-term unsecured debt rating of no less than "AA" from each
of S&P and Fitch (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates, as confirmed in writing to the Trustee and the Depositor by such
Rating Agency); provided that the Trustee shall not cease to be eligible to
serve as such based on a failure to satisfy such rating requirements so long as
either: (i) the Trustee maintains a long-term unsecured debt rating of no less
than "BBB" from each of S&P and Fitch (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates, as confirmed in writing to the Trustee and the
Depositor by such Rating Agency) and a Fiscal Agent meeting the requirements of
Section 8.13 has been appointed by the Trustee and is then currently serving in
such capacity; or (ii) the Trustee maintains a long-term unsecured debt rating
of no less than "A+" from each of S&P and Fitch (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed in writing to the
Trustee and the Depositor by such Rating Agency) and an Advance Security
Arrangement meeting the requirements of Section 8.14 has been established by the
Trustee and is then currently being maintained. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The corporation, bank, trust company or association
serving as Trustee may have normal banking and trust relationships with the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
and their respective Affiliates; provided, however, that none of (i) the
Depositor, (ii) any Person involved in the organization or operation of the
Depositor or the Trust, (iii) the Mortgage Loan Seller or (iv) any Affiliate of
any of them, may be the Trustee hereunder.
SECTION 8.07. Resignation and Removal of 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 Master
Servicer, the Special Servicer and all the Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee meeting the eligibility requirements of Section 8.06 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 other parties hereto and to 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.
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(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten Business Days, the Master
Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee 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 other parties hereto and to the
Certificateholders by the Depositor (or the Master Servicer, as the case may
be).
(c) The Holders of Certificates entitled to at least a majority of the
Voting Rights may (or, if such removal is in connection with the Trustee's and
any Fiscal Agent's failure to make any required Advance, 25% of the Voting
Rights) 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 Depositor (with copies to the Master Servicer and the
Special Servicer), one complete set to the Trustee so removed and one complete
set to the successor so appointed. All expenses incurred by the Trustee in
connection with its transfer of the Mortgages Files to a successor trustee
following the removal of the Trustee without cause pursuant to this Section
8.07(c), shall be reimbursed to the removed Trustee within 30 days of demand
therefor, such reimbursement to be made by the Certificateholders that
terminated the Trustee. A copy of such instrument shall be delivered to the
other parties hereto and to the remaining Certificateholders by the successor so
appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the successor trustee
nor any Fiscal Agent appointed by it has a long-term unsecured debt rating of at
least "AA" from each of S&P and Fitch, the Trustee and the Depositor have
received written confirmation from each Rating Agency that has not so assigned
such a rating, to the effect that the appointment of such successor trustee
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates. Notwithstanding anything herein to the contrary, any resignation
or removal of any Trustee shall also result in the resignation or removal of the
Tax Administrator for such 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 Master Servicer, the
Special Servicer and its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian shall become the agent of the
successor trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor trustee shall execute and deliver such instruments and do
such
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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, such successor trustee shall mail notice of the succession of
such trustee hereunder to the Depositor and the Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with which
it may be consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default in respect of the Master
Servicer shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06, 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.
(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
when acting as Master Servicer, Special Servicer or Tax Administrator
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
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(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint at the
Trustee's own expense one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee; provided that if the Custodian is an
Affiliate of the Trustee such consent of the Master Servicer need not be
obtained and the Trustee shall inform the Master Servicer of such appointment.
Each Custodian shall be a depositary institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall not be the Depositor, the Mortgage Loan
Seller or any Affiliate of the Depositor or the Mortgage Loan Seller, and shall
have in place a fidelity bond and errors and omissions policy, each in such form
and amount as is customarily required of custodians acting on behalf of Freddie
Mac or Fannie Mae. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative and each
Rating Agency and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner, access to any documentation regarding the Mortgage Loans or
the other assets of the Trust Fund that are in its possession or within its
control. Such access shall be afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of the
Trustee designated by it.
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(b) The Trustee shall maintain at its offices and, upon reasonable prior
written request and during normal business hours, shall make available for
review by the Depositor, the Underwriters, the Mortgage Loan Seller, the Rating
Agencies, the Controlling Class Representative and, subject to the succeeding
paragraph, any Certificateholder, Certificate Owner or Person identified to the
Trustee as a prospective Transferee of a Certificate or an interest therein,
originals and/or copies of the following items (to the extent such items were
prepared by or delivered to the Trustee): (i) the Prospectus, the Memorandum and
any other disclosure document relating to the Certificates, in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to
the Trustee since the Closing Date and any amendments and exhibits hereto or
thereto; (iii) all Trustee Reports and any files and reports comprising the CMSA
Investor Reporting Package actually delivered or otherwise made available to
Certificateholders pursuant to Section 4.02(a) since the Closing Date; (iv) all
Annual Performance Certifications delivered by the Master Servicer and the
Special Servicer, respectively, to the Trustee since the Closing Date; (v) all
Annual Accountants' Reports caused to be delivered by the Master Servicer and
the Special Servicer, respectively, to the Trustee since the Closing Date; (vi)
the most recent inspection report prepared by the Master Servicer or the Special
Servicer and delivered to the Trustee in respect of each Mortgaged Property
pursuant to Section 3.12(a); (vii) the most recent quarterly and annual
operating statement and rent roll of each related Mortgaged Property and
financial statements of the related Borrower collected by the Master Servicer or
the Special Servicer and delivered to the Trustee pursuant to Section 3.12(b);
(viii) any and all notices and reports delivered to the Trustee with respect to
any Mortgaged Property as to which the environmental testing contemplated by
Section 3.09(c) revealed that neither of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was satisfied; (ix) each of the Mortgage
Files, including any and all modifications, waivers and amendments of the terms
of a Mortgage Loan entered into or consented to by the Master Servicer or the
Special Servicer and delivered to the Trustee pursuant to Section 3.20; (x) the
most recent Appraisal for each Mortgage Loan and REO Property that has been
delivered to the Trustee (all Appraisals of Mortgaged Properties and/or REO
Properties shall be delivered to the Trustee by the Master Servicer or Special
Servicer, as applicable, promptly following their having been obtained or
formulated); (xi) any and all Officer's Certificates and other evidence
delivered to or by the Trustee to support its, the Master Servicer's, the
Special Servicer's or any Fiscal Agent's, as the case may be, determination that
any Advance was (or, if made, would be) a Nonrecoverable Advance; (xii) a
current report from the Trustee listing all outstanding exceptions to the
Mortgage File review conducted pursuant to Section 2.02 and (xiii) any other
information that may be necessary to satisfy the requirements of subsection
(d)(4)(i) of Rule 144A under the Securities Act. The Trustee shall provide
copies of any and all of the foregoing items upon request of any of the parties
set forth in the previous sentence; however, except in the case of the Rating
Agencies, the Trustee shall be permitted to require payment of a sum sufficient
to cover the reasonable costs and expenses of providing such copies.
In connection with providing access to or copies of the items described in
the preceding paragraph pursuant to this Section 8.12(b), the Trustee shall
require: (a) in the case of Certificate Owners, a written confirmation executed
by the requesting Person substantially in the form of Exhibit L-1 hereto (or
such other form as may be reasonably acceptable to the Trustee) generally to the
effect that such Person is a beneficial holder of Book-Entry Certificates and,
subject to the last sentence of this paragraph, will keep such information
confidential, except that such Certificate Owner may provide such information to
its auditors, legal counsel and regulators and to any other Person that holds or
is contemplating the purchase of any Certificate or interest therein (provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep such information
confidential); and (b) in the case of a prospective purchaser of a Certificate
or an interest
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therein, confirmation executed by the requesting Person substantially in the
form of Exhibit L-2 hereto (or such other form as may be reasonably acceptable
to the Trustee) generally to the effect that such Person is a prospective
purchaser of a Certificate or an interest therein, is requesting the information
for use in evaluating a possible investment in Certificates and, subject to the
last sentence of this paragraph, will otherwise keep such information
confidential. The Holders of the Certificates, by their acceptance thereof, will
be deemed to have agreed, subject to the last sentence of this paragraph, to
keep such information confidential, except that any Holder may provide any such
information obtained by it to its auditors, legal counsel and regulators and to
any other Person that holds or is contemplating the purchase of any Certificate
or interest therein (provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential). Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner need
keep confidential any information received from the Trustee pursuant to this
Section 8.12(b) that has previously been filed with the Commission, and the
Trustee shall not require either of the certifications contemplated by the
second preceding sentence in connection with providing any information pursuant
to this Section 8.12(b) that has previously been filed with the Commission.
(c) None of the Trustee, the Master Servicer or the Special Servicer shall
be liable for providing or disseminating information in accordance with the
terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "AA" from each
of S&P and Fitch (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by such
Rating Agency)). Any Person so appointed by the Trustee pursuant to this Section
8.13(a) shall become the Fiscal Agent on the date as of which the Trustee and
the Depositor have received: (i) if the long-term unsecured debt of the
designated Person is not rated at least "AA" by each of S&P and Fitch, written
confirmation from each Rating Agency that the appointment of such designated
Person will not result in an Adverse Rating Event with respect to any Class of
Rated Certificates; (ii) a written agreement whereby the designated Person is
appointed as, and agrees to assume and perform the duties of, Fiscal Agent
hereunder, executed by such designated Person and the Trustee (such agreement,
the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which shall be
paid for by the designated Person or the Trustee) substantially to the effect
that (A) the appointment of the designated Person to serve as Fiscal Agent is in
compliance with this Section 8.13, (B) the designated Person is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (C) the related Fiscal Agent Agreement has been duly authorized,
executed and delivered by the designated Person and (D) upon execution and
delivery of the related Fiscal Agent Agreement, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions and customary equity exceptions, that this Agreement shall
be enforceable against the designated Person in accordance with its terms. Any
Person that acts as Fiscal Agent shall, for so long as it so acts, be deemed a
party to this Agreement for all purposes hereof. Pursuant to the related Fiscal
Agent Agreement, each Fiscal Agent, if any, shall make representations and
warranties with respect to itself that are comparable to those made by the
Trustee pursuant to Section 2.07. Notwithstanding anything contained in this
Agreement to the contrary, any Fiscal Agent shall be entitled to all limitations
on liability, rights of reimbursement and indemnities to
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which the Trustee is entitled hereunder (including pursuant to Sections 8.05(b)
and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant to the terms of
this Agreement, to make any Advance, whether as successor Master Servicer or
otherwise, and has failed to do so in accordance with the terms hereof, the
Fiscal Agent (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.13 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to the contrary,
any Fiscal Agent shall be entitled to all limitations on liability, rights of
reimbursement and indemnities to which the Trustee is entitled hereunder
(including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the Trustee,
except that all fees and expenses of any Fiscal Agent (other than interest owed
to such Fiscal Agent in respect of unreimbursed Advances) incurred by such
Fiscal Agent in connection with the transactions contemplated by this Agreement
shall be borne by the Trustee, and neither the Trustee nor such Fiscal Agent
shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section 8.13 or
otherwise pursuant to this Agreement shall exist only for so long as the Trustee
that appointed it shall act as Trustee hereunder. Any Fiscal Agent may resign or
be removed by the Trustee only if and when the existence of such Fiscal Agent is
no longer necessary for such Trustee to satisfy the eligibility requirements of
Section 8.06; provided that any Fiscal Agent shall be deemed to have resigned at
such time as the Trustee that appointed it resigns or is removed as Trustee
hereunder (in which case the responsibility for appointing a successor Fiscal
Agent in accordance with this Section 8.13(a) shall belong to the successor
Trustee insofar as such appointment is necessary for such successor Trustee to
satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and the
Certificateholders in writing of the appointment, resignation or removal of any
Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating requirements
of Section 8.06, the Trustee may, at is own expense with the approval of the
Depositor, arrange for the pledging of collateral, the establishment of a
reserve fund or the delivery of a letter of credit, surety bond or other
comparable instrument or for any other security or financial arrangement (any or
all of the foregoing, individually and collectively, an "Advance Security
Arrangement") acceptable to the Controlling Class Representative for purposes of
supporting its back-up advancing obligations hereunder; provided that any
Advance Security Arrangement shall be in such form and amount, and shall be
maintained in such manner, as (i) would permit the Trustee to act in such
capacity without an Adverse Rating Event in respect of any Class of Rated
Certificates (as confirmed in writing to the Trustee and the Depositor by each
Rating Agency) and (ii) would not result in an Adverse REMIC Event (as evidenced
by an Opinion of Counsel addressed and delivered to the Trustee, the Depositor
and the Tax Administrator). The Trustee may terminate any Advance Security
Arrangement established by it only if and when (i) the existence of such Advance
Security Arrangement is no longer necessary for the Trustee to satisfy the
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eligibility requirements of Section 8.06 or (ii) when such Trustee resigns or is
removed as Trustee hereunder.
SECTION 8.15. Filings with the Securities and Exchange Commission.
(a) With respect to the Trust's fiscal year 2000 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depositary) by at least 300 Holders and/or Depositary
Participants having accounts with the Depositary), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act, the
rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and
properly file with the Commission monthly, with respect to the Trust,
a Current Report on Form 8-K with copies of the Trustee Reports, the
Delinquent Loan Status Report, the Historical Loan Modification
Report, the Historical Liquidation Report and the REO Status Report
attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify the
Depositor of the occurrence or existence of any of the matters
identified in Section 11.09(a) and/or Section 8.15(b) (in each case to
the extent that a Responsible Officer of the Trustee has actual
knowledge thereof), (B) cooperate with the Depositor in obtaining all
necessary information in order to enable the Depositor to prepare a
Current Report on Form 8-K reporting any such matter in accordance
with the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the
Commission, and (C) execute and promptly file with the Commission any
such Current Report on Form 8-K prepared by or on behalf of the
Depositor and delivered to the Trustee; and
(iii) within 90 days following the end of such fiscal year, prepare,
execute and properly file with the Commission, with respect to the
Trust, an Annual Report on Form 10-K which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the EDGAR system (or in "ASCII", "Microsoft
Word", "Microsoft Excel" or another format reasonably acceptable to the Trustee)
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it and those items delivered to it in a
format readily convertible to a format suitable for electronic filing via the
EDGAR system) and (y) the Depositor shall be responsible for preparing,
executing and filing (via the EDGAR system within 15 days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee or the Master Servicer, as applicable, in
a format suitable for electronic filing via the EDGAR system (or in "ASCII",
"Microsoft Word", "Microsoft Excel" or another format reasonably acceptable to
the Trustee) any and all items contemplated to be filed with the Commission
pursuant to this Section 8.15(a), to the extent it is otherwise required to
deliver such items to the Trustee or Master Servicer, as applicable.
(b) At all times during the Trust's fiscal year 2000 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered
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Certificates held in book-entry form, through the Depositary) by at least 300
Holders and/or Depositary Participants having accounts with the Depositary, at
all times during such other fiscal year), the Trustee shall monitor for and
promptly notify the Depositor of the occurrence or existence of any of the
following matters of which a Responsible Officer of the Trustee has actual
knowledge:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan or
an REO Property, which acquisition or disposition has not otherwise been
reflected in the Certificateholder Reports filed with the Commission or has
not otherwise been reported to the Depositor pursuant to any other Section
of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect of
or pertaining to the Trust or any party to this Agreement, or any actions
by or on behalf of the Trust or any party to this Agreement indicating its
bankruptcy, insolvency or inability to pay its obligations; and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports filed
with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (y) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
such Responsible Officer was notified in writing.
(c) If as of the beginning of any fiscal year for the Trust (other than
fiscal year 2000), the Registered Certificates are held (directly or, in the
case of Registered Certificates held in book-entry form, through the Depositary)
by less than 300 Holders and/or Depositary Participants having accounts with the
Depositary, the Trustee shall, in accordance with the Exchange Act and the rules
and regulations promulgated thereunder, timely file a Form 15 with respect to
the Trust.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
Subject to Section 9.02, the Trust and the respective obligations and
responsibilities under this Agreement of the parties hereto (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of: (i) the purchase by the Master Servicer,
the Special Servicer or any single Controlling Class Certificateholder or group
of Controlling Class Certificateholders of all Mortgage Loans and each REO
Property remaining in the Trust Fund at a price (the "Termination Price") equal
to (A) the aggregate Purchase Price of all the Mortgage Loans remaining in the
Trust Fund (exclusive of any REO Mortgage Loan(s)), plus (B) the appraised value
of each REO Property, if any, included in the Trust Fund, such appraisal to be
conducted by a Qualified Appraiser selected by the Special Servicer and approved
by the Trustee and the Master Servicer, minus (C) if the purchaser is the Master
Servicer or the Special Servicer, the aggregate amount of unreimbursed Advances
made by such Person, together with any unpaid Advance Interest in respect of
such unreimbursed Advances and any unpaid servicing compensation payable to such
Person (which items shall be deemed to have been paid or reimbursed to the
Master Servicer or the Special Servicer, as the case may be, in connection with
such purchase); and (ii) the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the Trust continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the Court of St. James, living on the date hereof.
The Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, in that
order of preference, may at its option elect to purchase all the Mortgage Loans
and each REO Property remaining in the Trust Fund as contemplated by clause (i)
of the preceding paragraph by giving written notice to the other parties hereto
(and, in the case of an election by the Master Servicer or Special Servicer, to
the Holders of the Controlling Class) no later than 60 days prior to the
anticipated date of purchase; provided, however, that the aggregate Stated
Principal Balance of the Mortgage Pool at the time of such election is less than
1.0% of the Initial Pool Balance; and provided, further, that within 30 days
after written notice of such election is so given, no Person with a higher right
of priority to make such an election does so; and provided, further, that if
more than one Controlling Class Certificateholder or group of Controlling Class
Certificateholders desire to purchase all of the Mortgage Loans and any REO
Properties, preference shall be given to the Controlling Class Certificateholder
or group of Controlling Class Certificateholders with the largest Percentage
Interest in the Controlling Class. If the Trust is to be terminated in
connection with the purchase of all the Mortgage Loans and each REO Property
remaining in the Trust Fund by the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder(s), such Person(s) shall deliver to the
Master Servicer for deposit (or, if the Master Servicer is the purchaser, it
shall deposit) in the Collection Account (after the Determination Date, and
prior to the Master Servicer Remittance Date, relating to the anticipated Final
Distribution Date) an amount in immediately available funds equal to the
Termination Price and shall reimburse all of the parties hereto (other than
itself, if
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applicable) for all reasonable out-of-pocket costs and expenses incurred by such
parties in connection with such purchase. On the Master Servicer Remittance Date
for the Final Distribution Date, the Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred thereto on such
Master Servicer Remittance 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 the deposit of the Termination Price has been made to the
Collection Account and the reimbursement contemplated by the second preceding
sentence has been made to the parties hereto, the Trustee shall release or cause
to be released to the purchasing party (or its designee) the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the purchasing party as shall be necessary
to effectuate transfer of the Mortgage Loans and REO Properties to the
purchasing party (or its designee).
Notice of any termination shall be given promptly by the Trustee by letter
to Certificateholders mailed (x) if such notice is given in connection with the
purchase of all the Mortgage Loans and each REO Property remaining in the Trust
Fund by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s), 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 and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates 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
office or agency of the Trustee therein designated. The Trustee shall give such
notice to the other parties hereto at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts on
deposit in the Distribution Account that is allocable to payments on the
relevant Class in accordance with Section 4.01.
Any funds not distributed to any Holder or Holders of Certificates of any
Class on the Final Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then,
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subject to applicable escheat laws, the Trustee shall distribute to the Class R
Certificateholders all unclaimed funds and other assets which remain subject
hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or a Controlling Class
Certificateholder purchases all the Mortgage Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust and each
REMIC Pool shall be terminated in accordance with the following additional
requirements, unless the purchasing party obtains at its own expense and
delivers to the Trustee and the Tax Administrator an Opinion of Counsel,
addressed to the Trustee and the Tax Administrator, to the effect that the
failure of the Trust to comply with the requirements of this Section 9.02 will
not result in an Adverse REMIC Event with respect to any REMIC Pool:
(i) the Tax Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each
REMIC Pool, pursuant to Treasury regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder (as evidenced by an Opinion of
Counsel to such effect delivered on behalf and at the expense of the
purchasing party);
(ii) during such 90-day liquidation period and at or prior to the time
of making the final payment on the Certificates, the Trustee shall sell all
the Mortgage Loans and each REO Property to the Master Servicer, the
Special Servicer or the applicable Controlling Class Certificateholder(s),
as the case may be, for cash in accordance with Section 9.01; and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class R Certificates all
remaining cash on hand (other than cash retained to meet claims), and each
REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders hereby authorize the
Tax Administrator to prepare and adopt, on behalf of the Trust, a plan of
complete liquidation of each REMIC Pool in accordance with the terms and
conditions of this Agreement, which authorization shall be binding upon all
successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a REMIC
under the Code and, if necessary, under applicable state law. Each such election
will be made on Form 1066 or other appropriate federal tax or information return
or any appropriate state Tax Returns for the taxable year ending on the last day
of the calendar year in which the Certificates are issued.
(b) The Plurality Class R Certificateholder is hereby designated as the Tax
Matters Person of each REMIC Pool and, in such capacity, shall be responsible to
act on behalf of such REMIC Pool in relation to any tax matter or controversy,
to represent such REMIC Pool in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority, to
request an administrative adjustment as to any taxable year of such REMIC Pool,
to enter into settlement agreements with any governmental taxing agency with
respect to such REMIC Pool, to extend any statute of limitations relating to any
tax item of such REMIC Pool and otherwise to act on behalf of such REMIC Pool in
relation to any tax matter or controversy involving such REMIC Pool; provided
that the Tax Administrator is hereby irrevocably appointed and agrees to act (in
consultation with the Tax Matters Person for each REMIC Pool) as agent and
attorney-in-fact for the Tax Matters Person for each REMIC Pool in the
performance of its duties as such. The legal expenses and costs of any action
described in this Section 10.01(b) and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Tax Administrator's misfeasance, bad faith or negligence in the performance of,
or such Person's reckless disregard of, its obligations or are expressly
provided by this Agreement to be borne by any party hereto.
(c) The Tax Administrator shall prepare or cause to be prepared and file,
and the Trustee shall sign, all of the Tax Returns in respect of each REMIC Pool
(other than Tax Returns required to be filed by the Master Servicer and/or the
Special Servicer pursuant to Section 3.09(g)) and all of the applicable income
tax and other information returns for each Grantor Trust Pool. The expenses of
preparing and filing such returns shall be borne by the Tax Administrator
without any right of reimbursement therefor.
(d) The Tax Administrator shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, the REMIC Provisions or other compliance guidance
issued by the IRS or any state or local taxing authority. Included among such
duties, the Tax Administrator shall provide: (i) to any Transferor of a Class R
Certificate, such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee; (ii) to the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required); and (iii) to the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool.
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(e) The Tax Administrator shall take such action and shall cause each REMIC
Pool to take such action as shall be necessary to create or maintain the status
thereof as a REMIC under the REMIC Provisions (and the other parties hereto
shall assist it, to the extent reasonably requested by the Tax Administrator),
to the extent that the Tax Administrator has actual knowledge that any
particular action is required; provided that the Tax Administrator shall be
deemed to have knowledge of relevant tax laws. The Tax Administrator shall not
knowingly take or fail to take any action, or cause any REMIC Pool to take or
fail to take any action, that under the REMIC Provisions, if taken or not taken,
as the case may be, could result in an Adverse REMIC Event in respect of any
REMIC Pool, unless the Tax Administrator has received an Opinion of Counsel to
the effect that the contemplated action or non-action, as the case may be, will
not result in an Adverse REMIC Event. None of the other parties hereto shall
take or fail to take any action (whether or not authorized hereunder) as to
which the Tax Administrator 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
any REMIC Pool or the assets thereof, or causing any REMIC Pool to take any
action, which is not contemplated by the terms of this Agreement, each of the
other parties hereto will consult with the Tax Administrator, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur, and
no such other party shall take any such action or cause any REMIC Pool to take
any such action as to which the Tax Administrator has advised it in writing that
an Adverse REMIC Event could occur. The Tax 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 permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)) , then such tax, together with all incidental costs and
expenses (including penalties and reasonable attorneys' fees), shall be charged
to and paid by: (i) the Tax Administrator, if such tax arises out of or results
from a breach of any of its obligations under this Article X; (ii) the Trustee,
if such tax arises out of or results from a breach of any of its obligations
under Article IV, Article VIII or this Article X; (iii) any Fiscal Agent, if
such tax arises out of or results from a breach of any of its obligations under
Article IV or this Article X; (iv) the Master Servicer, if such tax arises out
of or results from a breach by the Master Servicer of any of its obligations
under Article III or this Article X; (v) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Article X; or (vi) the Trust, out of the
Trust Fund (exclusive of the Grantor Trust Pools), in all other instances. If
any tax is imposed on either Grantor Trust Pool, such tax, together with all
incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Article X; (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under Article III or this Article X; (iii)
the Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this Article X;
(iv) the Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under Article IV, Article VIII or this Article
X; or (v) the Trust, out of the portion of the Trust Fund constituting such
Grantor Trust Pool, in all other instances. Consistent with the foregoing, any
tax permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust. Any such amounts payable by the Trust
in
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respect of taxes shall be paid by the Trustee at the direction of the Tax
Administrator out of amounts on deposit in the Distribution Account.
(g) The Tax Administrator and, to the extent that records are maintained
thereby in the normal course of its business, each of the other parties hereto
shall, for federal income tax purposes, maintain books and records with respect
to each REMIC Pool and each Grantor Trust Pool on a calendar year and an accrual
basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall not
(except as contemplated by Section 2.03) accept any contributions of assets to
any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution) to the effect that the
inclusion of such assets in such REMIC Pool will not result in an Adverse REMIC
Event in respect of such REMIC Pool.
(i) None of the Tax Administrator, the Master Servicer, the Special
Servicer, the Trustee or any Fiscal Agent shall consent to or, to the extent it
is within the control of such Person, permit: (i) the sale or disposition of any
Mortgage Loan (except in connection with (A) a breach of any representation or
warranty regarding any Mortgage Loan set forth in or made pursuant to the
Mortgage Loan Purchase Agreement or, in the case of a Union Capital Mortgage
Loan, the Union Capital Agreement, (B) the foreclosure, default or reasonably
foreseeable material default of a Mortgage Loan, including the sale or other
disposition of a Mortgaged Property acquired by foreclosure, deed in lieu of
foreclosure or otherwise, (C) the bankruptcy of any REMIC Pool, or (D) the
termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Collection Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust (other
than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan, other than a
Replacement Mortgage Loan substituted for a Deleted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Collection Account or the REO Account); in any event unless it has received an
Opinion of Counsel (at the expense of the party seeking to cause such sale,
disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not result in an Adverse REMIC Event in respect of any REMIC
Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the Tax
Administrator, the Master Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which any REMIC Pool will receive a fee or other
compensation for services or, to the extent it is within the control of such
Person, permit any REMIC Pool to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code. At all times as may
be required by the Code, each of the respective parties hereto (to the extent it
is within its control) shall ensure that substantially all of the assets of each
REMIC Pool will consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Within 30 days after the related Startup Day, the Tax Administrator
shall prepare and file with the IRS, with respect to each REMIC Pool, Form 8811
"Information Return for Real Estate Mortgage Investment Conduits (REMICs) and
Issuers of Collateralized Debt Obligations".
(l) On or before April 15 of each calendar year, commencing April 15, 2001,
unless the Tax Administrator and the Trustee are the same Person, the Tax
Administrator shall deliver to the
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Trustee an Officer's Certificate from a Responsible Officer of the Tax
Administrator confirming the Tax Administrator's compliance with its obligations
under this Agreement during the prior calendar year.
(m) The parties intend that the portion of the Trust Fund consisting of
Post-ARD Additional Interest on the ARD Loans and the Class E Sub-Account shall
constitute, and that the affairs of such portion of the Trust Fund shall be
conducted so as to qualify as, a Grantor Trust, and the provisions hereof shall
be interpreted consistently with this intention. In addition, the parties intend
that the portion of the Trust Fund consisting of the REMIC I Residual Interest,
the REMIC II Residual Interest and the REMIC III Residual Interest shall
constitute, and the affairs of such portion of the Trust Fund shall be conducted
so as to qualify as, a Grantor Trust, and the provisions hereof shall be
interpreted consistently with this intention. The Tax Administrator shall also
perform on behalf of each Grantor Trust Pool all reporting and other tax
compliance duties that are the responsibility of such Grantor Trust Pool under
the Code or any compliance guidance issued by the IRS or any state or local
taxing authorities. The expenses of preparing and filing such returns shall be
borne by the Tax Administrator.
SECTION 10.02. Depositor, Master Servicer, Special Servicer, Trustee and
Fiscal Agent to Cooperate with Tax Administrator.
(a) The Depositor shall provide or cause to be provided to the Tax
Administrator, within 10 days after the Closing Date, all information or data
that the Tax Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(b) Each of the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall furnish such reports, certifications and information in its
possession, and access to such books and records maintained thereby, as may
relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Tax Administrator in order to enable it to perform its duties
hereunder.
SECTION 10.03. Appointment of Tax Administrator.
The Trustee may, at its own expense, appoint any Person with appropriate
tax-related experience to act as Tax Administrator hereunder; provided that, in
the absence of any other Person appointed in accordance herewith acting as Tax
Administrator, the Trustee agrees to act in such capacity in accordance with the
terms hereof. The appointment of a Tax Administrator shall not relieve the
Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of the Tax Administrator. The Trustee
shall cause any such Tax Administrator appointed by it to execute and deliver to
the Trustee an instrument in which such Tax Administrator shall agree to act in
such capacity in accordance with the obligations and responsibilities provided
for herein. The Tax Administrator shall be subject to the same standards of
care, limitations on liability and rights to indemnity as the Trustee, and the
provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05(b), 8.05(c) and 8.05(e)
shall apply to the Tax Administrator to the same extent that they apply to the
Trustee. Any Tax Administrator appointed in accordance with this Section 10.03
may at any time resign by giving at least 30 days' advance written notice of
resignation to the Trustee, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Tax
Administrator appointed in accordance with this Section 10.03 by giving written
notice of termination to such Tax Administrator, the Master Servicer, and the
Depositor.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement
of the parties hereto, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct, modify or supplement any provision
herein which may be inconsistent with any other provision herein or to correct
any error, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the then
existing provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by (A) the REMIC Provisions (if the REMIC Provisions are amended or
clarified such that any such requirement may be relaxed or eliminated) or (B)
the Securities Act or the rules thereunder (if the Securities Act or such rules
are amended or clarified such that any such requirement may be relaxed or
eliminated, (v) as evidenced by an Opinion of Counsel delivered to the Trustee
and the Tax Administrator, either (X) to comply with any requirements imposed by
the Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to any REMIC
Pool or either Grantor Trust Pool at least from the effective date of such
amendment, or (Y) to avoid the occurrence of a prohibited transaction or to
reduce the incidence of any tax that would arise from any actions taken with
respect to the operation of any REMIC Pool or either Grantor Trust Pool, (vi) as
provided in Section 5.02(d)(iv), to modify, add to or eliminate any of the
provisions of Section 5.02(d)(i), (ii) or (iii), or (vii) to otherwise modify or
delete existing provisions of this Agreement; provided that such amendment
(other than any amendment for any of the specific purposes described in clauses
(v) and (vi) above) shall not adversely affect in any material respect the
interests of any Certificateholder or Designated Sub-Servicer, as evidenced by
an Opinion of Counsel obtained by or delivered to the Trustee to such effect;
and provided, further, that any such amendment covered solely by clause (vii)
above shall not (as confirmed in writing to the Trustee by each Rating Agency)
result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to not less than 66-2/3% of the Voting Rights allocated to all of the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans and/or REO Properties which
are required to be distributed on any Certificate, without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than as
described in clause (i) above, without the consent of the Holders of all
Certificates of such Class, (iii) modify the provisions of this Section 11.01 or
the definition of "Servicing Standard", without the consent of the Holders of
all Certificates then outstanding or (iv) adversely affect in any material
respect the interests of any third-party beneficiary to this Agreement or any
provision herein, without the consent of such third-party beneficiary.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the
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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 registered
in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, neither the
Trustee nor the Tax Administrator shall consent to any amendment to this
Agreement unless it shall first have obtained or been furnished with an Opinion
of Counsel to the effect that neither such amendment nor the exercise of any
power granted to any party hereto in accordance with such amendment will result
in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to either Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by all
parties thereto, the Trustee shall send a copy thereof to each Certificateholder
and to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization, execution
and delivery 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 11.01 that affects its rights, duties and immunities
under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to Section
11.01(a) or (c) shall be borne by the Person seeking the related amendment,
except that if the Trustee requests any amendment of this Agreement that it
reasonably believes protects or is in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the expense of the Trust (payable out of the Collection
Account), but only upon written direction of the Depositor accompanied by an
Opinion of Counsel (the cost of which may be paid out of the Collection Account)
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 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an
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accounting or to take any action or proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement or any Mortgage Loan, unless,
with respect to any suit, action or proceeding upon or under or with respect to
this Agreement, such Holder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and unless also (except in the case of a default by the Trustee) the
Holders of Certificates entitled to at least 25% of the Voting Rights shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of any
other Holders of Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder (which priority or preference is not
otherwise provided for herein), or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance with
the substantive laws of the State of New York applicable to agreements made and
to be performed entirely in said State, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws. The
parties hereto intend that the provisions of Section 5-1401 of the New York
General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in writing
(including by telecopy) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given when delivered to or, in the case of telecopy
notice, when received: (i) in the case of the Depositor, DLJ Commercial Mortgage
Corp., 277 Park Avenue, 9th Floor, New York, New York 10172, Attention: N. Dante
LaRocca, telecopy number: (212) 892-2003; (ii) in the case of the Master
Servicer, Midland Loan Services, Inc., 210 West 10th Street, Kansas City,
Missouri 64105, telecopy number: (816) 435-2326, Attention: Chief Executive
Officer; (iii) in the case of the Trustee and the Tax Administrator, Norwest
Bank Minnesota, National Association, 11000 Broken Land Parkway Columbia,
Maryland 21044-3562,
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Attention: Corporate Trust Administration (CMBS) - DLJ Commercial Mortgage Corp.
Series 2000-CF1, telecopy number (410) 884-2360; (iv) in the case of the Special
Servicer, GMAC Commercial Mortgage Corporation, 550 California Street, 12th
Floor, San Francisco, California 94104, Attention: Henry Bieber, telecopy number
(415) 835-9268; (v) in the case of the Rating Agencies, (A) Standard & Poor's
Ratings Services, a division of McGraw-Hill Companies, Inc., 55 Water Street,
10th Floor, New York, New York 10041, Attention: CMBS Surveillance Manager,
telecopy number (212) 208-0053 or (212) 208-8208, and (B) Fitch, Inc., One State
Street Plaza, New York, New York 10004, Attention: CMBS Surveillance Manager,
telecopy number: (212) 635-0295; (vi) in the case of the Mortgage Loan Seller,
Column Financial Inc., 3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia
30326-1113, Attention: President, telecopy number (404) 239-0419; and in the
case of Union Capital, Union Capital Investments LLC, 3490 Piedmont Road, Suite
1010, Atlanta, GA 30305, Attention: President, telecopy number (404) 812-4808;
or as to each such Person such other address and/or telecopy number as may
hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenant(s), agreement(s), provision(s) or term(s) shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns and, as
third party beneficiaries (with all right to enforce the obligations hereunder
intended for their benefit as if a party hereto), the Underwriters, the
Designated Sub-Servicers and the non-parties referred to in Sections 6.03, 8.05
and 3.22(g), and all such provisions shall inure to the benefit of the
Certificateholders. No other person, including any Borrower, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor.
(a) The Trustee shall promptly provide notice to each Rating Agency and the
Depositor 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;
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(iii) the resignation, termination, merger or consolidation of the
Master Servicer, the Special Servicer or the Tax Administrator and the
appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) any repurchase or substitution of a Mortgage Loan by the Mortgage
Loan Seller or Union Capital as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each Rating Agency
and the Depositor with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee and the appointment of a
successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer and the Special Servicer, as the case may
be, shall furnish each Rating Agency such information with respect to the
Mortgage Loans as such Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide to the extent consistent with applicable law and the related Mortgage
Loan documents. In any event, the Master Servicer and the Special Servicer shall
notify each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any change in the identity of the anchor tenant (i.e., a tenant
representing more than 20% of the total net rentable square feet of space)
at any Mortgaged Property used for retail purposes or any change in the
term of the lease for an anchor tenant at any such Mortgaged Property; and
(iii) any assumption of, or release or substitution of collateral for,
a Mortgage Loan that represents greater than 2% of the then aggregate
Stated Principal Balance of the Mortgage Pool;
(iv) any defeasance of or material damage to a Mortgaged Property;
(v) any change in a franchise; and
(vi) any loan subject to bankruptcy proceedings.
(vii) any release of a Letter of Credit or debt service reserve with
respect to any Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer, as the case may
be, shall promptly furnish (in hard copy format or through use of the Master
Servicer's Internet Website, which shall be accessible only with use of a
password, which shall be provided to the Rating Agencies) to each
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Rating Agency copies of the following items (in each case, at or about the same
time that it delivers or causes the delivery of such item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e).
(e) The Trustee shall promptly deliver or otherwise make available to each
Rating Agency (in hard copy format or through use of the Trustee's Internet
Website) a copy of each Certificateholder Report forwarded to the Holders of the
Certificates (in each case, at or about the same time that it delivers such
Certificateholder Report to such Holders). Any Restricted Servicer Reports
delivered electronically as aforesaid shall be accessible on the Trustee's
Internet Website only with the use of a password, which shall be provided by the
Trustee to each Rating Agency.
(f) The parties intend that each Rating Agency provide to the Trustee, upon
request, a listing of the then-current rating (if any) assigned by such Rating
Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicer or the Special Servicer, as the case may
be, shall deliver to the Controlling Class Representative a copy of each notice
or other item of information such Person is required to deliver to the Rating
Agencies pursuant to Section 11.09, in each case simultaneously with the
delivery thereof to the Rating Agencies.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties and may
not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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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.
DLJ COMMERCIAL MORTGAGE CORP.
Depositor
By: /s/ N. DANTE LAROCCA
------------------------------------
Name: N. Dante LaRocca
Title: Senior Vice President
MIDLAND LOAN SERVICES, INC.
Master Servicer
By: /s/ LAWRENCE D. ASHLEY
------------------------------------
Name: Lawrence D. Ashley
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
Special Servicer
By: /s/ HENRY J. BIEBER
------------------------------------
Name: Henry J. Bieber
Title: Senior Vice President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Solely in its capacity as Trustee
By: /s/ LESLIE A. GASKILL
------------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
STATE OF NEW YORK )
-------------------------
) ss.:
COUNTY OF NEW YORK )
-------------------------
On the 27th day of June 2000, before me, a notary public in and for said
State, personally appeared N. Dante LaRocca, personally known to me to be a
Senior Vice President of DLJ COMMERCIAL MORTGAGE CORP., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ CORINNE M. RAICHT
--------------------------------------
Notary Public
[Notarial Seal]
CORINNE M. RAICHT
NOTARY PUBLIC, STATE OF NEW YORK
NO. 4985516
QUALIFIED IN WESTCHESTER COUNTY
CERTIFICATE FILED IN NEW YORK COUNTY
COMMISSION EXPIRES
AUG. 19, 2001.
<PAGE>
STATE OF Missouri )
-------------------
) ss.:
COUNTY OF Jackson )
------------------
On the 22nd day of June 2000, before me, a notary public in and for said
State, personally appeared Lawrence D. Ashley, known to me to be a Senior Vice
President of MIDLAND LOAN SERVICES, INC., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ JILL ANN PALMER
--------------------------------------
Notary Public
[Notarial Seal]
JILL ANN PALMER
NOTARY PUBLIC-NOTARY SEAL
STATE OF MISSOURI
CLAY COUNTY
MY COMMISSION EXPIRES JUN 16, 2002
<PAGE>
STATE OF California )
-------------------
) ss.:
COUNTY OF San Francisco )
------------------
On the 20th day of June 2000, before me, a notary public in and for said
State, personally appeared Henry J. Bieber, known to me to be a Senior Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ LISA L. CONNOLLY
--------------------------------------
Notary Public
[Notarial Seal]
LISA L. CONNOLLY
COMMISSION #1182755
NOTARY PUBLIC-CALIFORNIA
SAN FRANCISCO COUNTY
MY COMMISSION EXPIRES MAY 8, 2002
<PAGE>
STATE OF New York )
-------------------
) ss.:
COUNTY OF New York )
------------------
On the 27th day of June 2000, before me, a notary public in and for said
State, personally appeared Leslie Gaskill , known to me to be a Vice President
of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ JACK A. AINI
--------------------------------------
Notary Public
[Notarial Seal]
JACK A. AINI
NOTARY PUBLIC, STATE OF NEW YORK
NO. 02A15079724
QUALIFIED IN KINGS COUNTY
COMMISSION EXPIRES JUNE 9, 2001
<PAGE>
EXHIBIT A-1
FORM OF CLASS S CERTIFICATES
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-CF1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Class Notional Amount of the Class S Certificates as
Variable of the Closing Date:
$__________
Cut-off Date: June 1, 2000 Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
Closing Date: June 27, 2000 $__________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
July 10, 2000 Loans as of the Closing Date ("Initial Pool
Balance"): $__________
Master Servicer: Trustee:
Midland Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. S-___ CUSIP No.: ________________
</TABLE>
A-1-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional amount
of this Certificate (its "Certificate Notional Amount") as of the Closing Date
by the aggregate notional amount of all the Class S Certificates (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust Fund evidenced by all the Class S Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor",
which term includes any successor entity under the Agreement), Midland Loan
Services, Inc. as master servicer (the "Master Servicer," which term includes
any successor entity under the Agreement), GMAC Commercial Mortgage Corporation
as special servicer (the "Special Servicer," which term includes any successor
entity under the Agreement) and Norwest Bank Minnesota, National Association as
trustee (the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned thereto in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and
A-1-2
<PAGE>
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class S Certificates on the
applicable Distribution Date pursuant to the Agreement. The "Determination Date"
in each month, commencing in July 2000, will be the fourth day of such month or,
if such fourth day is not a Business Day, then the immediately preceding
Business Day. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
A-1-3
<PAGE>
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 66-2/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
A-1-4
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:______________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the within-mentioned
Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:______________________________
Authorized Representative
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto______________________________________________________________
______________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:____________________________________________________________
______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
-for the account of __________________________________________.
Distributions made by check (such check to be made payable to ___________
___________________________) and all applicable statements and notices should be
mailed to ______________________________________________________________.
This information is provided by _______________________________________,
the Assignee named above, or ____________________________________, as its agent.
A-1-7
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1A AND A-1B CERTIFICATES
CLASS [A-1A] [A-1B] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2000-CF1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [A-1A]
____% per annum [A-1B] Certificates as of the Closing Date:
$__________
Cut-off Date: June 1, 2000 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Closing Date: June 27, 2000 $__________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage Loans
July 10, 2000 as of the Closing Date ("Initial Pool Balance"):
$__________
Master Servicer: Trustee:
Midland Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. [A-1A] [A-1B]-___ CUSIP No.:___________________
</TABLE>
A-2-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its "Certificate Principal Balance") as of the
Closing Date by the aggregate principal amount of all the Class [A-1A] [A-1B]
Certificates (their "Class Principal Balance") as of the Closing Date) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class [A-1A] [A-1B] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), Midland Loan Services, Inc. as master servicer (the
"Master Servicer," which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation as the special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned thereto in the Agreement. This Certificate is
issued under and is subject to the terms,
A-2-2
<PAGE>
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [A-1A] [A-1B]
Certificates on the applicable Distribution Date pursuant to the Agreement. The
"Determination Date" in each month, commencing in July 2000, will be the fourth
day of such month or, if such fourth day is not a Business Day, then the
immediately preceding Business Day. All distributions made under the Agreement
on this Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any portion
of an Unfunded Principal Balance Reduction in respect of this Certificate) will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
A-2-3
<PAGE>
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders
A-2-4
<PAGE>
under the Agreement at any time by the Depositor, the Master Servicer, the
Special Servicer, the Trustee and any Fiscal Agent with the consent of the
Holders of Certificates entitled to not less than 66-2/3% of the Voting Rights
allocated to all of the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:______________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1A] [A-1B] Certificates referred to in the
within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:______________________________
Authorized Representative
A-2-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to ____________
___________________) and all applicable statements and notices should be mailed
to ___________________________________________________________________________.
This information is provided by ______________________________________, the
Assignee named above, or ____________________________________________________,
as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-2, CLASS A-3, CLASS A-4,
CLASS B-1 AND CLASS B-2 CERTIFICATES
CLASS [A-2] [A-3] [A-4] [B-1] [B-2] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CF1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class
[___% per annum FOR CLASS A-2 AND CLASS [A-2] [A-3] [A-4] [B-1] [B-2] Certificates
A-3 CERTIFICATES] as of the Closing Date:
[Variable FOR CLASS A-4, CLASS B-1 AND $________________
CLASS B-2 CERTIFICATES]
Cut-off Date: June 1, 2000 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Closing Date: June 27, 2000 $________________
First Distribution Date: Aggregate Stated Principal Balance of the
July 10, 2000 Mortgage Loans as of the Closing Date:
("Initial Pool Balance"):$___________
Master Servicer: Trustee:
Midland Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. [A-2] [A-3] [A-4] [B-1] [B-2]-___ CUSIP No.:_________________
</TABLE>
A-3-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
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
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
amount of this Certificate (its
A-3-2
<PAGE>
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal amount of all the Class [A-2] [A-3] [A-4] [B-1] [B-2] Certificates
(their "Class Principal Balance") as of the Closing Date) in that certain
beneficial ownership interest in the Trust Fund evidenced by all the Class [A-2]
[A-3] [A-4] [B-1] [B-2] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of the Cut-off Date specified above (the "Agreement"), among DLJ Commercial
Mortgage Corp. as depositor (the "Depositor", which term includes any successor
entity under the Agreement), Midland Loan Services, Inc. as master servicer (the
"Master Servicer," which term includes any successor entity under the
Agreement), GMAC Commercial Mortgage Corporation as special servicer (the
"Special Servicer," which term includes any successor entity under the
Agreement) and Norwest Bank Minnesota, National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein have the
respective meanings assigned thereto in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [A-2] [A-3] [A-4]
[B-1] [B-2] Certificates on the applicable Distribution Date pursuant to the
Agreement. The "Determination Date" in each month, commencing in July 2000, will
be the fourth day of such month or, if such fourth day is not a Business Day,
then the immediately preceding Business Day. All distributions made under the
Agreement on this Certificate will be made by the Trustee by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
later than the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any portion of an Unfunded Principal Balance Reduction in respect of this
Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for
A-3-3
<PAGE>
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. For so long as this Certificate constitutes a
Book-Entry Certificate, each such Transferee shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transactions Class Exemption 95-60.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that,
A-3-4
<PAGE>
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the foregoing acknowledgments, representations, warranties,
certifications and/or agreements with respect to each such account as described
in the preceding paragraph.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
A-3-5
<PAGE>
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 66-2/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:______________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-2] [A-3] [A-4] [B-1] [B-2] Certificates
referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:______________________________
Authorized Representative
A-3-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: ___________________________________________________________
______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to
______________________________) and all applicable statements and notices should
be mailed to _________________________________________________________________.
This information is provided by ______________________________________, the
Assignee named above, or ___________________________________________________, as
its agent.
A-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS B-3, CLASS B-4, CLASS B-5, CLASS B-6,
CLASS B-7, CLASS B-8, CLASS C AND CLASS D CERTIFICATES
CLASS [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C] [D] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CF1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<CAPTION>
<S> <C>
Pass-Through Rate: Class Principal Balance of the Class [B-3] [B-4]
_____% per annum [B-5] [B-6] [B-7] [B-8] [C] [D]
Certificates as of the Closing Date:
$___________
Cut-off Date: June 1, 2000 Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Closing Date: June 27, 2000 $___________
First Distribution Date: Aggregate Stated Principal Balance of the
July 10, 2000 Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
Master Servicer: $___________
Midland Loan Services, Inc.
Special Servicer: Trustee:
GMAC Commercial Mortgage Corporation Norwest Bank Minnesota, National Association
Certificate No.[B-3] [B-4] [B-5] [B-6] CUSIP No.:__________________
[B-7] [B-8] [C] [D]-_____
</TABLE>
A-4-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
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
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(A) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-4-2
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [B-3] [B-4]
[B-5] [B-6] [B-7] [B-8] [C] [D] Certificates (their "Class Principal Balance")
as of the Closing Date) in that certain beneficial ownership interest in the
Trust Fund evidenced by all the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C]
[D] Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), GMAC
Commercial Mortgage Corporation as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee (the "Trustee", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class [B-3] [B-4] [B-5]
[B-6] [B-7] [B-8] [C] [D] Certificates on the applicable Distribution Date
pursuant to the Agreement. The "Determination Date" in each month, commencing in
July 2000, will be the fourth day of such month or, if such fourth day is not a
Business Day, then the immediately preceding Business Day. All distributions
made under the Agreement on this Certificate will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no later than the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed
A-4-3
<PAGE>
to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate (determined without regard to any possible future reimbursement of
any portion of an Unfunded Principal Balance Reduction in respect of this
Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
A-4-4
<PAGE>
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Donaldson, Lufkin & Jenrette
Securities Corporation, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer or an Institutional Accredited Investor. The
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee a certification,
substantially in the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the
Agreement, to the effect that such prospective Transferee is a Qualified
Institutional Buyer or a certification from the prospective Transferee to the
effect that such prospective Transferee is an Institutional Accredited Investor.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the two preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this
A-4-5
<PAGE>
Certificate for registration of transfer at the offices of the Certificate
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Certificate Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized denominations evidencing
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 66-2/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including
A-4-6
<PAGE>
any amendment necessary to maintain the status of any REMIC Pool as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-4-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:______________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-3] [B-4] [B-5] [B-6] [B-7] [B-8] [C] [D]
Certificates referred to in the within-mentioned Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:______________________________
Authorized Representative
A-4-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: ___________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________________________) and all applicable
statements and notices should be mailed to ___________________________________.
This information is provided by _____________________________________, the
Assignee named above, or ___________________________________________________, as
its agent.
A-4-9
<PAGE>
EXHIBIT A-5
FORM OF CLASS E CERTIFICATES
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CF1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
<TABLE>
<CAPTION>
<S> <C>
Cut-off Date: June 1, 2000 Percentage Interest evidenced by this Class E
Certificate: ______%
Closing Date: June 27, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date
First Distribution Date: ("Initial Pool Balance"):$__________
July 10, 2000
Master Servicer: Trustee:
Midland Loan Services, Inc. Norwest Bank Minnesota, National Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. E- ___ CUSIP No.:______________________
</TABLE>
A-5-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
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
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(A) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
A-5-2
<PAGE>
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class E Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off
Date specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), GMAC
Commercial Mortgage Corporation as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee (the "Trustee", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class E Certificates on the
applicable Distribution Date pursuant to the Agreement. The "Determination Date"
in each month, commencing in July 2000, will be the fourth day of such month or,
if such fourth day is not a Business Day, then the immediately preceding
Business Day. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such
A-5-3
<PAGE>
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, any Fiscal Agent or the Certificate Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Donaldson, Lufkin & Jenrette
Securities Corporation, the Trustee, any Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar against any liability that may
result if such transfer, sale, pledge or other disposition is not exempt from
the registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer or an Institutional Accredited Investor. The
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee a certification,
substantially in the form attached as Annex 1 or Annex 2 to Exhibit F-2A to the
Agreement, to the effect that such prospective Transferee is a Qualified
Institutional Buyer or a certification from the prospective Transferee to the
effect that such prospective Transferee is an Institutional Accredited Investor.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement
A-5-4
<PAGE>
accounts and annuities, Keogh plans and collective investment funds and separate
accounts in which such plans, accounts or arrangements are invested, including
insurance company general accounts, that is subject to ERISA or Section 4975 of
the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in limited circumstances, the Certificate Registrar
shall refuse to register the transfer of this Certificate unless it has received
from the prospective Transferee either (i) a certification to the effect that
such prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the two preceding
paragraphs.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the
A-5-5
<PAGE>
Depositor, the Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 66-2/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-5-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:______________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within-mentioned
Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:______________________________
Authorized Representative
A-5-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: __________________________________________________________
_______________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________________________________
for the account of ___________________________________________________________.
Distributions made by check (such check to be made payable to ____________
_____________________________________________________________________________)
and all applicable statements and notices should be mailed to _________________
______________________________________________________________________________.
This information is provided by ______________________________________, the
Assignee named above, or ___________________________________________, as its
agent.
A-5-8
<PAGE>
EXHIBIT A-6
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-CF1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: June 1, 2000 Percentage Interest evidenced by
this Class R Certificate: ___%
Closing Date: June 27, 2000 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Closing Date ("Initial
First Distribution Date: Pool Balance"): $__________
July 10, 2000
Master Servicer: Trustee:
Midland Loan Services, Inc. Norwest Bank Minnesota,
National Association
Special Servicer:
GMAC Commercial Mortgage Corporation
Certificate No. R- ___ CUSIP No.:__________________
A-6-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
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
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, MIDLAND
LOAN SERVICES, INC., GMAC COMMERCIAL MORTGAGE CORPORATION, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE
A-6-2
<PAGE>
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off
Date specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc. as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), GMAC
Commercial Mortgage Corporation as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association as trustee (the "Trustee", which term includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the later of (i) the tenth day of such month (or, if
such tenth day is not a Business Day, on the next succeeding Business Day) and
(ii) the fourth Business Day following the Determination Date (as defined below)
in such month, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class R Certificates on the
applicable Distribution Date pursuant to the Agreement. The "Determination Date"
in each month, commencing in July 2000, will be the fourth day of such month or,
if such fourth day is not a Business Day, then the immediately preceding
Business Day. All distributions made under the Agreement on this Certificate
will be made by the Trustee by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or
A-6-3
<PAGE>
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to the Holder hereof of
such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached as
Exhibit F-2A to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Trustee to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust or of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, any Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based. Any Certificateholder desiring to effect a
transfer, sale, pledge or other disposition of this Certificate or any interest
herein shall, and does hereby agree to, indemnify the Depositor, Donaldson,
Lufkin & Jenrette Securities Corporation, the Trustee, any Fiscal Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar against any
liability that may result if such transfer, sale, pledge or other disposition is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
A-6-4
<PAGE>
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification, substantially in the form attached as
Annex 1 or Annex 2 to Exhibit F-2A to the Agreement, to the effect that such
prospective Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in limited circumstances, the Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee either: (i) a certification to the
effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification to the effect that
the purchase and holding of this Certificate by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
Transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this
A-6-5
<PAGE>
Certificate, it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. In connection
therewith, the Certificate Registrar shall not register the transfer of an
Ownership Interest in this Certificate to any entity classified as a partnership
under the Code unless at the time of transfer, all of its beneficial owners are
United States Persons.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account as described in the five preceding
paragraphs.
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
and the Tax Administrator the following: (a) written confirmation from each
Rating Agency to the effect that the modification of, addition to or elimination
of such provisions will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the Tax Administrator, to the effect
that such modification of, addition to or elimination of such provisions will
not cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of a Residual Interest Certificate to a
Person that is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". In addition, if such Transferee
is classified as a partnership under the Code, such Transferee can only be a
"Permitted Transferee" if all of its beneficial owners are United States
Persons.
A-6-6
<PAGE>
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, any State or political subdivision thereof or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
Freddie Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the Tax Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Class R Certificate by such Person may
cause the Trust or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, any
Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose
A-6-7
<PAGE>
name this Certificate is registered as the owner hereof for all purposes, and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and any Fiscal
Agent and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent with the consent of the Holders of Certificates entitled to not
less than 66-2/3% of the Voting Rights allocated to all of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the substantive laws
of the State of New York applicable to agreements made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-6-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:
---------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the within-mentioned
Agreement.
Dated:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Certificate Registrar
By:
---------------------------
Authorized Representative
A-6-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ) and
___________________________________ all applicable statements and notices should
be mailed to _________________________________________________________________.
This information is provided by ______________________________________, the
Assignee named above, or ____________________________________________________,
as its agent.
A-6-10
<PAGE>
EXHITBIT B-1
SCHEDULE OF MORTGAGE LOANS
[See Attached Schedule]
B-1-1
<PAGE>
<TABLE>
<CAPTION>
# Property Name Address
- ------------- -------
<S> <C> <C>
1 Connecticut Financial Center 157 Church Street
2 Presidio Apartments 2000 Walnut Avenue
3 77 Water Street 77 Water Street
4 777 3rd Avenue 777 3rd Avenue
5 Baldwin Commons 4806-4868 Baldwin Road
6 San Mateo Plaza 1850 Gateway Drive
7 Glendale Marketplace 140 South Brand Boulevard
8 Flagship Phase 1
8a Regional Place Apartments 3037 Mustang Drive
8b Ashton Park Apartments 2403 Pioneer Parkway
8c Meadowbrook Apartments 515 Bender Avenue
8d Parkside Apartments 8455 Will Clayton Parkway
8e Ashwood Park Apartments 3520 Burke Road
9 Sonora Village Shopping Center 15640 North Pima Road
10 West Covina Village Shopping Center 301-477 North Azusa Avenue
11 Boulder Park Apartments 24 Kessler Farm Drive
12 One Congress Center 401 South State Street and
418 South Wabash Avenue
13 Royal Coachman Resort (1A) 1070 Laurel Road East
14 Paradise Park Resort (1A) 1201 North Expressway 77
15 Vacation Village Travel Resort (1A) 6900 Ulmerton Road
16 Alliance CH F3
16a Sage Hollow Apartments 10700 Fuqua Street
16b The Gardens Apartments 1660 West T.C. Jester Boulevard
16c Elm Creek Apartments 2911 Sycamore Springs Drive
17 Village of the Four Seasons Mobile Home Park (1B) 200 Ford Road
18 Parque La Quinta Mobile Home Park (1B) 305 South Willow Avenue
19 Las Palmas Mobile Home Park (1B) 1025 South Riverside Avenue
20 North Mathilda Office Center 755 North Mathilda Avenue and 680 Vaqueros Avenue
21 Gateway Plaza 950 North Meridian Street
22 Mansion House 300 North Fourth Street
23 Paradyne Corporation 8545 126th Avenue North
24 Alliance CH F1
24a The Place at Green Trails Apartments 1111 Houghton Road
24b The Harbour Apartments 4040 Crow Road
25 Christmas Tree Shop Plaza & Staples Plaza 15 and 20 Stockwell Drive
26 Savannah Grand Apartments 3207 Rosebud Lane
27 University Avenue Park 26 Dartmouth Street
28 Holiday Inn Select 111 Route 173
29 Klahanie Village Shopping Center 4560 Klahanie Drive SE
30 Alliance CH F4
30a Tanglebrook Apartments 1430 Fountainview
30b Steeplechase Apartments 2400 Loop 35
31 Brookfield III Office Building 31700 Middlebelt Road
32 Birch Street Promenade 110, 260, and 330 Birch Street
33 Tops Plaza Shopping Center 1381 East Ridge Road
34 The Market Shopping Center 8915 Market Place Northeast
35 Dyncorp Building 6101 Stevenson Avenue
36 Maroa Park Apartments 501 West Sierra Avenue
37 Belleview Plaza Shopping Center 7070 Aaron Aronov Drive
38 Perimeter Square West 1165 Perimeter Center West
39 Ramsgate Apartments 1407 Bernard Street
40 Norwood Center 4211-4251 Norwood Avenue
41 Alliance CH F2
41a Deerbrook Forest Apartments 17750 Highway 59 North
41b Chalfonte Apartments 1715 Enclave Parkway
42 The 495 Technology Center 153 Northboro Road
43 The Village Shopping Center 19301, 19307 & 19361 Saticoy Street
44 Blue Ridge Office Building 639 Granite Street
45 Sundance Apartments 1670 Murray Boulevard
46 The Park 600 Park Drive
47 Stevenson Ranch Plaza Phase II 24955-24991 Pico Canyon Road
48 Woodward Pavilion Shopping Center 8805-8971 North Cedar Avenue
49 Decatur Twain Shopping Center 3650 South Decatur Boulevard
50 Walnut Hills Plaza 18718-18750 Amar Road
51 Maple Leaf Apartments 7106-7120 Broadway
52 Colerain Towers 5464 Bahama Terrace
53 Sierra Mobile Estates 17225 & 17333 Valley Boulevard
54 Spring Street Business Park 3156-3160 Spring Street
55 123-125 Broad Street 123-125 Broad Street
56 Galleria at the Renaissance 1405-1409 Renaissance Boulevard
57 Canterbury Apartments 3400 Northwest 29th Street
58 Chester Commons 1120 Chester Avenue
59 Winsor Office Plaza 1935 West County Road B-2
60 Foxhaven Apartments 7275 Hickory Street
61 The Residential Resort 8 and 11 Turtle Creek Lane
62 Alvarado Place Apartments 1475 South Alvarado Drive
63 Sherman Grove 627 Grove Street and
1549-1571 Sherman Avenue
64 Aztec Square Shopping Center 4823 Highway 95
65 Renzi Portfolio
65a Lithuanian Hall 924-32 East Moyamensing Avenue
65b Stable Court 213 Fitzwater Street
65c Gaskill Court 337 Gaskill Street
66 Selma Square Shopping Center Phase II 2775 and 2851 South Highland Avenue
67 Stonewood Village Retail Center 5976 Memorial Drive
68 Fiesta Plaza 6711 Mullins Street
69 Pecan Valley Manufactured Housing Community 6507 Barksdale Boulevard
70 The Colonial Woods Apartments 6333 Windswept Lane
71 Pikesville Plaza 600 Reistertown Road
72 Autumn Brook Apartments 301 Autumn Brook Terrace
73 Ladley Building 500 South Arthur Avenue
74 Monaco Village Shopping Center 2200 South Monaco Parkway
75 Westminster Townhouse Apartments 600 Redmond Road
76 Bentley Place Apartments 2828 North Pine Hills Road
77 King Louis XIV Apartments 3121 Johnston Street
78 Cornerstone Chase Apartments 3120-3152 Valley Meadow Drive
79 Oakwood Manor Condominium Apartments 4800 Oakwood Drive
80 Pamida Hometown Values 174 James Robertson Drive
81 Stahl Plaza 158 Mountain View Boulevard
82 Melrose Center Shops 2615 Franklin Pike
83 Autumn Chase / Whisper Cove Apartments 8600 Research Boulevard
84 Triangle Plaza Shopping Center 18030 Triangle Shopping Plaza
85 La Hacienda Apartments 6100 Glenmont Drive
86 Bel Air Center 1200 Cirbyway and
1079 Sunrise Avenue
87 Southwood Court Townhouses 24 State Street
88 1045 Sheridan Street 1045 Sheridan Street
89 Coit Village Shopping Center 6832 Coit Road
90 Broadway Square 120 South White Horse Pike
91 Oak Hill Manor Apartments 7314 Oak Manor Drive
92 Bayou Rouge Apartments 7110 East Kings Highway
93 Franklin Square Apartments - Syracuse 460 North Franklin Square
94 The Villages of Inwood Apartments 5710-5732 West Mount Houston Road
95 Laurel Tree Apartments 17923 Arrow Boulevard
96 Liberty Ridge Apartments 6222 Loop 410 Northwest
97 Twelve Oaks Apartments 105 Gattis School Road
98 Catalina Apartments 7733 South Shore Drive
99 Hickory Hill Apartments 276 Stewart's Ferry Pike
100 Washington Square and Lincoln Estates Apartments 511 Washington Avenue &
711 East 7th Street
101 Ruse De Ville Apartments 7650 Clarewood Drive
102 Park Place Shopping Center 801-821 East Capitol Drive
103 75 Midvale Road 75 Midvale Road
104 Quail Creek Arms Apartments 9133 Northgate Boulevard
105 Hampton Courts Apartments 26111 Pinehurst Street
106 Williamsburg Apartments 3105 Edenborn Avenue
107 Winward II Apartments 4288-4292 Chaha Road
108 Carriage Hill Apartments 473 Whalley Avenue
109 Brookview Commons 4261 West 20th Street
110 Southview and Westview Apartments 2505 West Violet Street & 4827 Melton Lane
111 Creek Bend Apartments 1013 East Interstate 30
112 The Willows Townhomes 3712 Coral Springs Drive
113 Stuyvesant Avenue Apartments 818 Stuyvesant Avenue
114 National Mobile Home Park 5311 East Archer Street
115 Hollywood Video Store 11602 South Memorial Parkway
116 Lakeview Apartments 100 Lakeview Boulevard
117 16 and 18-20 Taylor Avenue Apartments 16 and 18-20 Taylor Avenue
118 Granite Court 431-433 West Gay Street
119 Timberlakes Apartments 1041 East Interstate Highway 30
120 Garden Creek Apartments 1033, 1037, & 1041 East Interstate 30
121 Royal Court Apartments 2031 North Prairie Avenue
122 Ponderosa Village Mobile Home Park 2027 Read Street
123 Allen Place & Greenwood Apartments 46 Allen Place & 17 Greenwood Street
124 Averil Way Apartments 6143 Averill Way
125 Cheverly 12 Warehouse 4801-4823 Lydell Road
126 1055 Clarkson Apartments 1055 Clarkson Street
127 Circle Apartments 1527 South Austin Street
128 Windswept Apartments 2703-2707 Windswept Cove
(1A) The underlying mortgage loans secured by royal coachman resort, paradise
park resort and vacation village travel resort are cross-collateralized and
cross-defaulted, respectively.
(1B) The underlying mortgage loans secured by village of the four seasons mobile
home park, parque la quinta mobile home park and las palmas mobile home
park are cross-collateralized and cross-defaulted, respectively.
</TABLE>
B-1-2
<PAGE>
<TABLE>
<CAPTION>
Mortgage Original
Zip Loan Loan Cut-off Monthly
# City County State Code Seller Balance Balance Payment
- ---- ------ ----- ---- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 New Haven New Haven CT 06511 Column $56,000,000 $55,941,966 $422,679.35
2 Fremont Alameda CA 94538 Column 49,000,000 48,944,982 359,718.87
3 New York New York NY 10005 Column 41,500,000 41,500,000 329,151.88
4 New York New York NY 10017 Column 40,000,000 40,000,000 311,542.89
5 Orion Oakland MI 48359 Column 38,000,000 37,984,176 284,146.69
6 San Mateo San Mateo CA 94404 Column 36,500,000 36,409,504 268,333.14
7 Glendale Los Angeles CA 91205 Column 32,000,000 31,809,442 232,133.27
8 Column 29,550,000 29,522,973 232,258.95
8a Grapevine Tarrant TX 76051
8b Grand Prairie Tarrant TX 75051
8c Humble Harris TX 77338
8d Humble Harris TX 77338
8e Pasadena Harris TX 77504
9 Scottsdale Maricopa AZ 85260 Column 28,700,000 28,700,000 203,395.31
10 West Covina Los Angeles CA 91791 Column 26,500,000 26,489,591 200,951.68
11 Nashua Hillsborough NH 03063 Column 24,760,000 24,733,770 185,491.67
12 Chicago Cook IL 60605 Column 24,300,000 24,291,348 188,398.12
13 Nokomis Sarasota FL 34275 Union Capital 13,175,000 13,170,229 101,771.58
14 Harlingen Cameron TX 78552 Union Capital 4,725,000 4,723,289 36,498.73
15 Largo Pinellas FL 33771 Union Capital 2,200,000 2,199,203 16,994.12
16 Column 18,417,890 18,369,957 141,487.14
16a Houston Harris TX 77089
16b Houston Harris TX 77008
16c Houston Harris TX 77339
17 San Jose Santa Clara CA 95138 Union Capital 11,130,000 11,130,000 84,724.03
18 Rialto San Bernardino CA 92376 Union Capital 3,700,000 3,700,000 28,165.22
19 Rialto San Bernardino CA 92376 Union Capital 2,800,000 2,800,000 21,314.22
20 Sunnyvale Santa Clara CA 94086 Column 17,625,000 17,575,799 132,039.21
21 Indianapolis Marion IN 46204 Column 17,500,000 17,456,115 136,175.46
22 St. Louis St. Louis City MO 63102 Column 17,250,000 17,199,049 133,004.51
23 Largo Pinellas FL 33773 Column 16,000,000 15,993,640 120,990.93
24 Column 14,231,889 14,194,850 109,330.07
24a Houston Harris TX 77450
24b Beaumont Jefferson TX 77706
25 Avon Norfolk MA 02322 Column 12,000,000 12,000,000 89,393.87
26 Winter Park Orange FL 32792 Column 11,500,000 11,487,035 84,302.77
27 Westwood Norfolk MA 02090 Column 10,000,000 9,996,119 76,042.52
28 Clinton Hunterdon NJ 08809 Column 9,750,000 9,675,107 79,894.21
29 Issaquah King WA 98029 Column 9,600,000 9,596,436 73,747.67
30 Column 9,403,577 9,379,104 72,238.74
30a Houston Harris TX 77057
30b Alvin Brazoria TX 77511
31 Farmington Hills Oakland MI 48334 Column 8,900,000 8,875,536 67,050.52
32 Brea Orange CA 92821 Column 8,845,000 8,817,752 67,259.61
33 Irondequoit Monroe NY 14609 Column 8,700,000 8,666,173 65,176.80
34 Lake Stevens Snohomish WA 98205 Column 8,400,000 8,396,515 62,870.34
35 Alexandria Alexandria City VA 22304 Column 8,200,000 8,188,207 61,950.08
36 Fresno Fresno CA 93704 Column 8,150,000 8,127,366 61,170.94
37 Fairfield Jefferson AL 35064 Column 8,000,000 7,989,537 62,137.82
38 Atlanta Dekalb GA 30338 Column 7,860,000 7,860,000 58,608.09
39 Denton Denton TX 76201 Column 7,100,000 7,100,000 56,502.83
40 Sacramento Sacramento CA 95838 Column 7,050,000 7,030,471 52,964.30
41 Column 6,946,644 6,928,565 53,364.46
41a Humble Harris TX 77396
41b Houston Harris TX 77077
42 Southborough Worcester MA 01772 Column 6,800,000 6,797,244 51,181.77
43 Reseda Los Angeles CA 91335 Column 6,100,000 6,100,000 46,213.79
44 Braintree Norfolk MA 02184 Column 5,860,000 5,857,503 43,571.89
45 Colorado Springs El Paso CO 80915 Column 5,300,000 5,295,864 41,787.86
46 Warner Robins Houston GA 31088 Union Capital 5,200,000 5,187,846 41,429.46
47 Stevenson Ranch Los Angeles CA 91381 Column 5,000,000 4,974,952 35,510.15
48 Fresno Fresno CA 93720 Column 4,875,000 4,865,316 39,050.09
49 Las Vegas Clark NV 89103 Column 4,790,000 4,778,052 37,341.36
50 Walnut Los Angeles CA 91789 Column 4,550,000 4,532,675 34,342.70
51 Merrillville Lake IN 46410 Column 4,539,400 4,526,434 33,720.81
52 Cincinnati Hamilton OH 45223 Column 4,100,000 4,075,542 30,571.65
53 Fontana San Bernardino CA 92335 Union Capital 3,800,000 3,790,032 29,111.06
54 Fairfax Fairfax VA 22031 Column 3,700,000 3,698,598 28,292.62
55 Boston Suffolk MA 02110 Column 3,700,000 3,691,241 30,193.40
56 Albuquerque Bernalillo NM 87107 Column 3,600,000 3,598,466 26,767.71
57 Lauderdale Lakes Broward FL 33311 Column 3,600,000 3,591,259 26,692.10
58 Cleveland Cuyahoga OH 44114 Column 3,350,000 3,348,792 25,901.19
59 Roseville Ramsey MN 55113 Column 3,270,000 3,263,294 25,888.76
60 Frisco Collin TX 75034 Column 2,900,000 2,898,915 22,236.86
61 East Hartford Hartford CT 06108 Column 2,800,000 2,789,753 21,430.44
62 Colorado Springs El Paso CO 80910 Column 2,650,000 2,647,906 20,805.46
63 Evanston Cook IL 60201 Column 2,600,000 2,590,034 20,268.80
64 Fort Mohave Mohave AZ 86426 Column 2,350,000 2,343,590 17,753.99
65 Column 2,300,000 2,295,685 18,804.98
65a Philadelphia Philadelphia PA 19147
65b Philadelphia Philadelphia PA 19147
65c Philadelphia Philadelphia PA 19147
66 Selma Fresno CA 93662 Column 2,300,000 2,291,356 17,441.09
67 Stone Mountain Dekalb GA 30083 Column 2,150,000 2,150,000 16,384.79
68 Houston Harris TX 77081 Column 2,125,000 2,121,628 17,629.64
69 Bossier City Bossier LA 71112 Union Capital 2,100,000 2,099,274 16,385.91
70 Houston Harris TX 77057 Column 2,000,000 1,997,840 14,884.96
71 Pikesville Baltimore MD 21208 Column 2,000,000 1,996,951 16,852.46
72 Hueytown Jefferson AL 35023 Column 1,946,700 1,941,335 14,652.29
73 Louisville Boulder CO 80027 Column 1,927,500 1,925,584 14,752.56
74 Denver Denver CO 80222 Column 1,825,000 1,822,675 14,279.15
75 Rome Floyd GA 30165 Column 1,800,000 1,797,833 14,302.26
76 Orlando Orange FL 32808 Column 1,800,000 1,797,232 15,117.86
77 Lafayette Lafayette LA 70503 Column 1,675,000 1,670,525 12,748.95
78 Dallas Dallas TX 75220 Column 1,650,000 1,646,920 13,514.40
79 Odessa Ector TX 79762 Column 1,620,000 1,617,983 12,756.12
80 Gladwin Gladwin MI 48624 Column 1,587,000 1,581,526 12,394.37
81 Wayne Passaic NJ 07470 Column 1,575,000 1,573,972 13,152.69
82 Nashville Davidson TN 37204 Column 1,560,000 1,558,527 12,139.07
83 Austin Travis TX 78758 Column 1,536,000 1,532,199 12,007.01
84 Dumfries Prince William VA 22026 Column 1,500,000 1,498,937 12,210.10
85 Houston Harris TX 77081 Column 1,495,500 1,493,984 11,372.16
86 Roseville Placer CA 95661 Column 1,500,000 1,493,647 12,321.97
87 Biddeford York ME 04005 Column 1,487,000 1,485,539 11,423.21
88 Chicopee Hampden MA 01020 Union Capital 1,480,000 1,474,023 12,399.84
89 Plano Collin TX 75023 Column 1,387,500 1,386,224 10,885.75
90 Hammonton Atlantic NJ 08037 Column 1,360,000 1,356,040 10,534.43
91 San Antonio Bexar TX 78229 Column 1,260,000 1,258,648 10,310.97
92 Shreveport Caddo LA 71115 Column 1,200,000 1,199,615 9,509.05
93 Syracuse Onondaga NY 13204 Column 1,170,000 1,166,515 8,996.29
94 Houston Harris TX 77088 Column 1,150,000 1,148,841 8,761.13
95 Fontana San Bernardino CA 92335 Column 1,150,000 1,148,680 9,253.16
96 San Antonio Bexar TX 78238 Column 1,140,000 1,140,000 9,107.15
97 Round Rock Williamson TX 78664 Column 1,128,000 1,124,349 8,995.10
98 Chicago Cook IL 60649 Column 1,100,000 1,097,852 8,866.68
99 Nashville Davidson TN 37214 Column 1,100,000 1,097,278 8,598.77
100 Monticello Wright MN 55362 Column 1,100,000 1,095,996 8,434.67
101 Houston Harris TX 77036 Column 984,000 981,381 7,839.73
102 Milwaukee Milwaukee WI 53212 Column 980,000 978,243 8,140.46
103 Edison Middlesex NJ 08837 Column 970,000 959,963 8,559.62
104 Austin Travis TX 78758 Column 925,000 923,286 7,596.35
105 Roseville Macomb MI 48066 Column 860,000 857,726 6,570.04
106 Metairie Jefferson LA 70002 Column 855,000 852,718 6,805.83
107 Garland Dallas TX 75043 Column 840,000 839,325 6,861.83
108 New Haven New Haven CT 06411 Column 825,000 823,931 6,425.57
109 Cleveland Cuyahoga OH 44109 Column 807,500 806,521 6,404.58
110 Tampa Hillsborough FL 33614 Column 760,000 760,000 6,545.25
111 Garland Dallas TX 75043 Column 725,000 724,417 5,922.41
112 Coral Springs Broward FL 33065 Column 700,000 699,128 5,511.90
113 Irvington Essex NJ 07111 Column 680,000 679,389 5,373.86
114 Tulsa Tulsa OK 74115 Union Capital 620,000 619,318 5,042.29
115 Huntsville Madison AL 35803 Column 620,000 619,018 5,147.94
116 Glasgow Barren KY 42141 Column 619,000 616,951 4,900.66
117 Norwalk Fairfield CT 06854 Column 610,000 609,786 4,742.35
118 West Chester Chester PA 19380 Column 600,000 598,837 4,849.34
119 Garland Dallas TX 75043 Column 575,000 574,538 4,697.09
120 Garland Dallas TX 75043 Column 570,000 569,542 4,656.24
121 Dallas Dallas TX 75204 Column 560,000 559,014 4,680.21
122 Omaha Douglas NE 68111 Column 510,000 508,762 4,012.17
123 Hartford Hartford CT 06106 Column 500,000 499,303 4,291.76
124 Dallas Dallas TX 75225 Column 500,000 498,802 3,951.37
125 Cheverly Prince George's MD 20781 Column 500,000 498,009 4,213.11
126 Denver Denver CO 80218 Column 465,000 464,560 3,615.07
127 Denison Grayson TX 75020 Column 450,000 448,991 3,633.76
128 Austin Travis TX 78745 Column 388,000 387,652 3,307.90
</TABLE>
B-1-3
<PAGE>
<TABLE>
<CAPTION>
Only Interest
Orig Rem. Orig Ram. Prepayment Fee Calculation
Interest Term to Term to Maturity Amort. Amort. Period as of Provision Simple/ (30/360/
# Rate Maturity Maturity Date Term Term (months) Origination Defeasance Leasehold Actual/360)
- -------- -------- -------- -------- ------ ------ -------- ------------------ ---------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 8.30% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Leasehold Actual/360
2 8.01% 120 118 4/1/30 360 358 L (10) Yes Fee Actual/360
3 8.84% 144 144 6/1/12 360 360 L (11.75), O (0.25) Yes Leasehold Actual/360
4 8.64% 120 120 6/1/10 360 360 L (9.75), O (0.25) Yes Leasehold Actual/360
5 8.20% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
6 8.02% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
7 7.88% 120 110 8/1/09 360 350 L (9.5), O (0.5) Yes Fee Actual/360
8 8.74% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Actual/360
8a Fee
8b Fee
8c Fee
8d Fee
8e Fee
9 8.23% 120 114 12/1/09 360 360 24 L (9.5), O (0.5) Yes Fee Actual/360
10 8.35% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
11 8.22% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
12 8.59% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
13 8.55% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
14 8.55% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
15 8.55% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
16 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
16a Fee
16b Fee
16c Fee
17 8.84% 120 117 3/1/10 360 360 12 L (9.5), O (0.5) Yes Fee Actual/360
18 8.84% 120 117 3/1/10 360 360 12 L (9.5), O (0.5) Yes Fee Actual/360
19 8.84% 120 117 3/1/10 360 360 12 L (9.5), O (0.5) Yes Fee Actual/360
20 8.22% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
21 8.63% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
22 8.53% 120 114 12/1/29 360 354 L (9.5), O (0.5) Yes Leasehold Actual/360
23 8.32% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
24 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
24a Fee
24b Fee
25 8.16% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
26 7.99% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
27 8.38% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
28 8.71% 120 111 9/1/09 300 291 L (9.5), O (0.5) Yes Fee Actual/360
29 8.49% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
30 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
30a Fee
30b Fee
31 8.28% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
32 8.38% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
33 8.22% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
34 8.21% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
35 8.31% 120 117 3/1/30 360 357 L (9.5), O (0.5) Yes Fee Actual/360
36 8.24% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
37 8.61% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
38 8.17% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
39 8.36% 120 120 6/1/10 300 300 L (9.5), O (0.5) Yes Fee Actual/360
40 8.25% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
41 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
41a Fee
41b Fee
42 8.27% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
43 8.34% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
44 8.14% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
45 8.25% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
46 8.89% 120 115 1/1/30 360 355 L (9.5), O (0.5) Yes Fee Actual/360
47 7.66% 120 112 10/1/09 360 352 L (9.5), O (0.5) Yes Fee Actual/360
48 8.95% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
49 8.65% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
50 8.30% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
51 8.13% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
52 8.17% 120 109 7/1/09 360 349 L (9.5), O (0.5) Yes Fee Actual/360
53 8.46% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
54 8.44% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
55 8.66% 120 117 3/1/10 300 297 L (9.5), O (0.5) Yes Fee Actual/360
56 8.14% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
57 8.11% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
58 8.56% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
59 8.82% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
60 8.47% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
61 8.45% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
62 8.20% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
63 8.65% 120 112 10/1/09 360 352 L (9.5), O (0.5) Yes Fee Actual/360
64 8.31% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
65 9.18% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Actual/360
65a Fee
65b Fee
65c Fee
66 8.35% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
67 8.85% 120 115 1/1/10 336 336 24 L (9.5), O (0.5) Yes Fee Actual/360
68 8.86% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
69 8.66% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
70 8.15% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
71 9.05% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
72 8.27% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
73 8.45% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
74 8.69% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
75 8.86% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
76 9.01% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
77 8.39% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
78 9.20% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
79 8.76% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
80 8.67% 120 113 5/1/21 360 353 L (9.5), O (0.5) Yes Fee Actual/360
81 8.94% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
82 8.63% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
83 8.68% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
84 8.63% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
85 8.38% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
86 8.74% 120 115 1/1/10 300 295 L (9.5), O (0.5) Yes Fee Actual/360
87 8.49% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
88 8.98% 120 115 1/1/10 300 295 L (9.5), O (0.5) Yes Fee Actual/360
89 8.72% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
90 8.58% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
91 9.19% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
92 8.83% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
93 8.50% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
94 8.40% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
95 9.00% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
96 8.92% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
97 8.90% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
98 9.02% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
99 8.68% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
100 8.47% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
101 8.89% 84 78 12/1/06 360 354 L (6.5), O (0.5) Yes Fee Actual/360
102 9.36% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
103 8.73% 120 113 11/1/09 240 233 L (9.5), O (0.5) Yes Fee Actual/360
104 9.23% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
105 8.43% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
106 8.88% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
107 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
108 8.64% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
109 8.84% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
110 9.32% 120 120 6/1/10 300 300 L (9.5), O (0.5) Yes Fee Actual/360
111 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
112 8.76% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
113 8.80% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
114 9.12% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
115 8.87% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
116 8.82% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
117 8.62% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
118 9.05% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
119 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
120 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
121 9.43% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
122 8.75% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
123 8.35% 120 119 5/1/10 240 239 L (9.5), O (0.5) Yes Fee Actual/360
124 8.80% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
125 9.05% 120 115 1/1/10 300 295 L (9.5), O (0.5) Yes Fee Actual/360
126 8.62% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
127 9.04% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
128 9.66% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
</TABLE>
B-1-4
<PAGE>
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
There are no exceptions to the Mortgage File delivery.
B-2-1
<PAGE>
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[DATE]
Column Financial, Inc. Midland Loan Services, Inc.
3414 Peachtree Road, N.E. 210 West 10th Street, 6th Floor
Suite 1140 Kansas City, Missouri 64105
Atlanta, Georgia 30326-1113
Donaldson, Lufkin & Jenrette GMAC Commercial Mortgage Corporation
Securities Corporation 550 California Street, 12th Floor
277 Park Avenue San Francisco, California 94104
New York, New York 10172
Goldman Sachs & Co. Norwest Bank
85 Broad Street Minnesota, National Association
New York, New York 10004 11000 Broken Land Parkway
Columbia, Maryland 210444-3562
Solomon Smith Barney Inc.
388 Greenwich Street, 11th Floor
New York, New York 10013
Re: DLJ Commercial Mortgage Corp, Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated as
of June 1, 2000 and related to the above-referenced Certificates (the
"Agreement"), Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"), hereby certifies as to each Original Mortgage Loan subject to the
Agreement (except as identified in the exception report attached hereto) that:
(i) the original Mortgage Note specified in clause (i) of the definition of
"Mortgage File" and all allonges thereto, if any (or a copy of such Mortgage
Note, together with a lost note affidavit and indemnity certifying that the
original of such Mortgage Note has been lost), the original or copy of each
recorded document specified in clauses (ii) through (v) of the definition of
"Mortgage File", and the original or copy of the policy of title insurance
specified in clause (vii) of the definition of "Mortgage File" and each document
specified in clause (viii) of the definition of "Mortgage File" (without regard
to the parenthetical), is in its possession or the possession of a Custodian on
its behalf; (ii) if such report is due more than 180 days after the Closing
Date, the recordation/filing contemplated by Section 2.01(e) has been completed
(based solely on receipt by the Trustee of the particular recorded/filed
documents); (iii)
B-3-1
<PAGE>
all documents received by it or any Custodian with respect to such Mortgage Loan
have been reviewed by it or by such Custodian on its behalf and (A) appear
regular on their face (handwritten additions, changes or corrections shall not
constitute irregularities if initialed by the Borrower), (B) appear to have been
executed and (C) purport to relate to such Mortgage Loan; and (iv) based on the
examinations referred to in Section 2.02(a) and Section 2.02(b) of the Agreement
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (ii)
(other than the zip code) and (vi)(B) of the definition of "Mortgage Loan
Schedule" accurately reflects the information set forth in the Mortgage File.
Pursuant to Section 2.02(c) of the Agreement, neither the Trustee nor the
Custodian is under any obligation to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, binding, enforceable, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Furthermore, neither the Trustee nor the Custodian shall have any responsibility
for determining whether the text of any assignment or endorsement is in proper
or recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By:___________________________
Name:
Title:
B-3-2
<PAGE>
EXHIBIT C
LETTER OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITARY
[See Attached]
C-1
<PAGE>
[LOGO]
--------------------------------------------------------------------------------
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs) --
WITHOUT OWNER OPTION TO REDEEM/PASS-THROUGH SECURITIES/
and ASSET-BACKED SECURITIES
--------------------------------------------------------------------------------
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
DLJ COMMERCIAL MORTGAGE CORP.
----------------------------------------------
[Name of Issuer]
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
----------------------------------------------
[Name of Agent]
June 27, 2000
-------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
55 Water Street 49th Floor
New York, NY 10041-0099
Re: DLJ Commercial Mortgage Corp.
----------------------------------------------------------
Commercial Mortgage Pass Through Certificates, Series
----------------------------------------------------------
2000--CF1, Class S, A-lA, A-1B, A-2, A-3, A-4, B-1, B-2
----------------------------------------------------------
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated June 1, 2000 (the "Document"). DLJ Commercial Mortgage
Corp./Goldman Sachs & Co./Salomon Smith Barney ["Underwriter/Placement Agent"]
<PAGE>
are distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on June 27, 2000 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate principal
amount of any maturity exceeds $400 million, one certificate shall be issued
with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer 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.
Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND SHALL
CROSS OUT THE OTHER.]
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives an
instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or cancel
the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives an
instruction originated by Participant through the DWAC system to decrease the
Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
-2-
<PAGE>
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC no fewer than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (212) 855-5181 or (212) 855-5182. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5202. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
4. In the event of a full or partial redemption, Issuer or Agent shall send
a notice to DTC specifying: (a) the amount of the redemption or refunding; (b)
in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
(the "Publication Date"). Such notice shall be sent to DTC by a secure means
(e.g., legible telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be no fewer
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be directed to DTC's
Call Notification Department at (516) 227-4164 or (516) 227-4190. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (516) 227-4070. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to:
-3-
<PAGE>
Manager, Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (212) 855-5488. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5290. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
6. It is understood that if the Security holders shall at any time have the
right to tender the Securities to Issuer and require that Issuer repurchase such
holders' Securities pursuant to the Document and Cede & Co., as nominee of DTC,
or its registered assigns, as the record owner, is entitled to tender the
Securities, such tenders will be effected by means of DTC's Repayment Option
Procedures. Under the Repayment Option Procedures, DTC shall receive, during the
applicable tender period, instructions from its Participants to tender
Securities for purchase. Issuer and Agent agree that such tender for purchase
may be made by DTC by means of a book-entry credit of such Securities to the
account of Agent, provided that such credit is made on or before the final day
of the applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business two business days
before the Publication Date. The Publication Date shall be no fewer than 15 days
prior to the expiration date of the applicable tender period. Such notice shall
state whether any partial redemption of the Securities is scheduled to occur
during the applicable optional tender
-4-
<PAGE>
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (212) 855-5235. if the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-5230. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
55 Water Street 50th Floor
New York, NY 10041-0099
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably five, but no fewer than two,
business days prior to such payment date. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g., adjustments due to deferred interest or shortfall), and Agent contact's
name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 855-4555, and receipt of such notices shall be confirmed by
telephoning (212) 855-4550. Notices to DTC, pursuant to this Paragraph, by mail
or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
55 Water Street 25th Floor
New York, NY 10041-0099
9. Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING,
AND SHALL CROSS OUT THE other.] [The interest accrual period is record date to
record date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. if
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (212) 855-4555 or (212) 855-4556. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (212) 855-4550. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
-5-
<PAGE>
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later than
12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. if the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (212) 855-4633 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such maturity and redemption payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Redemption Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such reorganization payments due Agent, or at such earlier time as required by
Agent to guarantee that DTC shall receive payment in same-day funds no later
than 2:30 p.m. (Eastern Time) on the payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired to the Reorganization
Deposit Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (212) 855-4777. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (212) 855-4590.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
-6-
<PAGE>
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any Participant having Securities credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this Letter of
Representations is responsible for confirming that such notice was properly
received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and shall
not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time:
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
self-regulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
-7-
<PAGE>
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (212) 855-5182. Receipt of such requests shall be confirmed by
telephoning (212) 855-5202. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "www.DTC.org."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-8-
<PAGE>
NOTES:
------
A. IF THERE IS AN AGENT (AS DEFINED IN THIS LETTER
OF REPRESENTATIONS), AGENT AS WELL AS ISSUER MUST
SIGN THIS LETTER. IF THERE IS NO AGENT, IN SIGNING
THIS LETTER ISSUER ITSELF UNDERTAKES TO PERFORM
ALL OF THE OBLIGATIONS SET FORTH HEREIN.
B. SCHEDULE B CONTAINS STATEMENTS THAT DTC
BELIEVES ACCURATELY DESCRIBE DTC, the METHOD OF
EFFECTING BOOK-ENTRY TRANSFERS OF SECURITIES
DISTRIBUTED THROUGH DTC, and CERTAIN RELATED
MATTERS.
VERY TRULY YOURS,
DLJ Commercial Mortgage Corp.
--------------------------------------------
[Issuer]
By: /s/ [PLEASE PROVIDE]
--------------------------------------------
[Authorized Officer's Signature]
Norwest Bank Minnesota, National Association
--------------------------------------------
[Agent]
By: /s/ [PLEASE PROVIDE]
--------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
BY: [PLEASE PROVIDE]
-----------------------
Funds should be wired to:
The Chase Manhattan Bank
ABA#021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
[SELECT APPROPRIATE ACCOUNT.]
Dividend Deposit Account #066-026776
Redemption Deposit Account #066-027306
Reorganization Deposit Account #066-027608
CC: UNDERWRITER/PLACEMENT AGENT
UNDERWRITER'S/PLACEMENT AGENT'S COUNSEL
-9-
<PAGE>
SCHEDULE A
----------
DLJ COMMERCIAL MORTGAGE CORP.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
CUSIP PRINCIPAL MATURITY INTEREST
CLASS NUMBER AMOUNT DATE(1) RATE(2)
----- ------ ------ ------- -------
Class S 23322B KC 1 $886,241,440 June, 2012 0.7463%
Class A-1A 23322B KD 9 $96,065,000 August, 2009 7.4500%
Class A-1B 23322B KE 7 $566,400,000 May, 2010 7.6200%
Class A-2 23322B KF 4 $44,312,000 May, 2010 7.7600%
Class A-3 23322B KG 2 $37,665,000 May, 2010 7.9200%
Class A-4 23322B KH 0 $13,294,000 May, 2010 8.0200%
Class B-1 23322B KJ 6 $31,018,000 June, 2010 8.3473%
Class B-2 23322B KK 3 $11,078,000 June, 2010 8.3300%
----------
(1) If the stated date is not a business day, the maturity date is the business
day immediately following the stated date.
(2) Approximate. The interest rates shown are the approximate rates applicable
for distributions in July, 2000. The interest rates are variable or otherwise
subject to change.
* Notional Amount
-10-
<PAGE>
SCHEDULE B
----------
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
-----------------------------------
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Direct and Indirect Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
-11-
<PAGE>
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or
vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
-12-
<PAGE>
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
-13-
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of June 1, 2000 (the "Pooling and Servicing Agreement"), among DLJ Commercial
Mortgage Corp. as depositor, the undersigned as master servicer (in such
capacity, the "Master Servicer"), GMAC Commercial Mortgage Corporation as
special servicer and you as trustee (in such capacity, the "Trustee"), the
undersigned as Master Servicer hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by or on behalf of you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts
received in connection with the Mortgage Loan that
are required to be credited to the Collection Account
pursuant to the Pooling and Servicing Agreement, have
been or will be so credited.
______ 2. 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 Mortgage Loan
has been paid in full, in which case the Mortgage File (or such portion thereof)
will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
D-1-1
<PAGE>
MIDLAND LOAN SERVICES, INC.
as Master Servicer
By:___________________________
Name:
Title:
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue, S.E.
Minneapolis, MN 55414
Attention: Mortgage Document Custody (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Pass-Through Certificates,
Series 2000-CF1
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of June 1, 2000 (the "Pooling and Servicing Agreement"), among DLJ Commercial
Mortgage Corp. as depositor, Midland Loan Services, Inc. as master servicer, the
undersigned as special servicer (the "Special Servicer") and you as trustee (in
such capacity, the "Trustee"), the undersigned as Special Servicer hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by or on behalf of you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe) ___________________________________________
___________________________________________
D-2-1
<PAGE>
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose. Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Pooling and Servicing Agreement.
GMAC COMMERCIAL MORTGAGE CORPORATION
as Special Servicer
By: ________________________________
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E-1
FORM OF TRUSTEE REPORT
[See Attached Schedule]
E-1
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
DISTRIBUTION DATE STATEMENT
TABLE OF CONTENTS
--------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(S)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property Stratification Tables 7 - 9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specially Serviced Loan Detail 14 - 15
Modified Loan Detail 16
Liquidated Loan Detail 17
--------------------------------------------------------------------------------
UNDERWRITER
--------------------------------------------------------------------------------
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, NY 10172
Contact: N. Dante LaRocca
Phone Number: (212) 892-3000
--------------------------------------------------------------------------------
MASTER SERVICER
--------------------------------------------------------------------------------
Midland Loan Services, Inc.
210 West 10th Street
Kansas City, MO 64105
Contact: Brad Hauger
Phone Number: (816) 292-8629
--------------------------------------------------------------------------------
SPECIAL SERVICER
--------------------------------------------------------------------------------
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, PA 10944-8015
Contact: Coral I. Horstmeyer
Phone Number: (215) 328-1790
--------------------------------------------------------------------------------
This report has been compiled from information provided to Norwest by various
third parties, which may include the Servicer, Master Servicer, Special Servicer
and others. Norwest has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Norwest
expressly disclaims any responsibility for the accuracy or completeness of
information furnished by third parties.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 1 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
CERTIFICATE DISTRIBUTION DETAIL
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Interest
Pass-Through Original Beginning Principal Distri- Prepayment Realized Loss / Total Ending Current
Class CUSIP Rate Balance Balance Distribution bution Penalties Additional Trust Distribution Balance Subordination
Fund Expenses Level (1)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-1B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-5 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-6 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-7 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
B-8 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-I 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-II 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
R-III 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00%
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------
Original Beginning Interest Ending
Pass-Through Notional Notional Distri- Prepayment Total Notional
Class CUSIP Rate Amount Amount bution Penalties Distribution Amount
-------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
-------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending certificate balance of the designated
class and (ii) the ending certificate balance of all classes which are not
subordinate to the designated class and dividing the result by (A).
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 2 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
CERTIFICATE FACTOR DETAIL
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------
Beginning Principal Interest Prepayment Realized Loss / Ending
Class CUSIP Balance Distribution Distribution Penalties Additional Trust Balance
Fund Expenses
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
A-1A 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-1B 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-2 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-3 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
A-4 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-1 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-2 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-3 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-4 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-5 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-6 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-7 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
B-8 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
C 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
D 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
E 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
R-I 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
R-II 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
R-III 0.000000 0.000000 0.000000 0.000000 0.000000 0.000000
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------
Beginning Interest Prepayment Ending
Class CUSIP Notional Distribution Penalties Notional
Amount Amount
----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
S 0.00000000 0.00000000 0.00000000 0.00000000
----------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 3 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
RECONCILIATION DETAIL
ADVANCE SUMMARY
P & I Advances Outstanding 0.00
Servicing Advances Outstanding 0.00
Reimbursement for Interest on Advances 0.00
paid from general collections
SERVICING FEE BREAKDOWNS
Current Period Accrued Servicing Fees 0.00
Less Delinquent Servicing Fees 0.00
Less Reductions to Servicing Fees 0.00
Plus Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Servicing Calculation 0.00
Total Servicing Fees Collected 0.00
CERTIFICATE INTEREST RECONCILIATION
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
Distributable
Accrued Net Aggregate Distributable Certificate Additional Remaining Unpaid
Certificate Prepayment Certificate Interest Trust Fund Interest Distributable
Class Interest Interest Shortfall Interest Adjustment Expenses Distribution Certificate Interest
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
S 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-7 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B-8 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 4 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
OTHER REQUIRED INFORMATION
--------------------------------------------------------------------------------
Available Distribution Amount 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Trust Fund Expenses 0.00
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00
--------------------------------------------------------------------------------
Appraisal Reduction Amount
--------------------------------------------------------------------------------
Appraisal Date Appraisal
Loan Reduction Reduction
Number Amount Effected
--------------------------------------------------------------------------------
NONE
--------------------------------------------------------------------------------
TOTAL
--------------------------------------------------------------------------------
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 5 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
RATINGS DETAIL
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
Class CUSIP ----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Fitch Moody's S & P Fitch Moody's S & P
----------------------------------------------------------------------------------------------------------
S
A-1A
A-1B
A-2
A-3
A-4
B-1
B-2
B-3
B-4
B-5
B-6
B-7
B-8
C
D
E
-----------------------------------------------------------------------------------------------------------------
</TABLE>
NR - Designates that the class was not rated by the above agency at the time
of original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
Fitch
One State Street Plaza
New York, New York 10004
(212) 908-0500
Moody's Investors Service
99 Church Street
New York, New York 10007
(212) 553-0300
Standard & Poor's Rating Services
55 Water Street
New York, New York 10041
(212) 438-2000
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 6 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
SCHEDULED BALANCE
--------------------------------------------------------------------------------
% of
Scheduled # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
STATE (3)
--------------------------------------------------------------------------------
% of
# of Scheduled Agg. WAM Weighted
State Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
See footnotes on last page of this section.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 7 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
DEBT SERVICE COVERAGE RATIO
--------------------------------------------------------------------------------
Debt Service % of
Coverage # of Scheduled Agg. WAM Weighted
Ratio Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
PROPERTY TYPE (3)
--------------------------------------------------------------------------------
% of
Property # of Scheduled Agg. WAM Weighted
Type Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
NOTE RATE
--------------------------------------------------------------------------------
% of
Note # of Scheduled Agg. WAM Weighted
Rate Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
SEASONING
--------------------------------------------------------------------------------
% of
# of Scheduled Agg. WAM Weighted
Seasoning Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
See footnotes on last page of this section.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 8 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS)
--------------------------------------------------------------------------------
Anticipated % of
Remaining # of Scheduled Agg. WAM Weighted
Term (2) Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
REMAINING STATED TERM (FULLY AMORTIZING LOANS)
--------------------------------------------------------------------------------
Remaining % of
Stated # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS)
--------------------------------------------------------------------------------
Remaining % of
Amortization # of Scheduled Agg. WAM Weighted
Term Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
AGE OF MOST RECENT NOI
--------------------------------------------------------------------------------
Age of Most % of
Recent # of Scheduled Agg. WAM Weighted
NOI Loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most current
DSCR provided by the Servicer is used. To the extent that no DSCR is provided by
the Servicer, information from the offering document is used. The Trustee makes
no representations as to the accuracy of the data provided by the borrower for
this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
Note: (i) "Scheduled Balance" has the meaning assigned thereto in the CMSA
Standard Information Package.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 9 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
MORTGAGE LOAN DETAIL
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
----------------------------------------------------------------------
Ending Paid Appraisal Appraisal Res. Mod.
Loan Scheduled Thru Reduction Reduction Strat. Code
Number Balance Date Date Amount (2) (3)
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------
Totals
----------------------------------------------------------------------
</TABLE>
(1) Property Type Code
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 10 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
PRINCIPAL PREPAYMENT DETAIL
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Penalties
Offering Document -------------------------------------------------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Premium
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 11 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
HISTORICAL DETAIL
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------
Delinquencies Prepayments
------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications Curtailments Payoff
Date # Balance # Balance # Balance # Balance # Balance # Balance # Amount # Amount
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------
<CAPTION>
--------------------------------------
Rate and Maturities
--------------------------------------
Distribution Next Weighted Avg.
Date Coupon Remit WAM
--------------------------------------
<S> <C> <C> <C>
--------------------------------------
</TABLE>
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 12 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
DELINQUENCY LOAN DETAIL
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------
<CAPTION>
-----------------------------------------------------------------------------------------
Current Outstanding
Foreclosure Servicing Servicing Bankruptcy Date REO
Loan Number Date Advances Advances Date
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------
</TABLE>
(1) Status of Mortgage Loan
<TABLE>
<S> <C> <C>
A - Payment Not Received 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Balloon)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three Or More Months Delinquent 9 - REO
</TABLE>
(2) Resolution Strategy Code
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed In Lieu Of
6 - DPO Foreclosure
** Outstanding P & I Advances include the current period advance
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 13 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
SPECIALLY SERVICED LOAN DETAIL - PART 1
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------
Net Remaining
Distribution Actual Operating NOI Note Maturity Amortization
Date Balance Income Date DSCR Date Date Term
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------
</TABLE>
(1) Resolution Strategy Code
1 - Modification 7 - REO
2 - Foreclosure 8 - Resolved
3 - Bankruptcy 9 - Pending Return
4 - Extension to Master Servicer
5 - Note Sale 10 - Deed In Lieu Of
6 - DPO Foreclosure
(2) Property Type Code
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 14 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
SPECIALLY SERVICED LOAN DETAIL - PART 2
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Phase 1 Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Resolution Strategy Code
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 15 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
MODIFIED LOAN DETAIL
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification
Number Cross-Reference Balance Modification Date Modification Description
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------
Total
-----------------------------------------------------------------------------------------------------------
</TABLE>
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 16 of 17
<PAGE>
DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
------------------------------------------
[LOGO OF NORWEST BANKS] For Additional Information, please contact
NORWEST BANK MINNESOTA, N.A. CTSLink Customer Service
CORPORATE TRUST SERVICES (301) 815-6600
45 BROADWAY, 12TH FLOOR Reports Available on the World Wide Web
NEW YORK, NY 10006 @ www.ctslink.com/cmbs
------------------------------------------
PAYMENT DATE: 07/10/2000
RECORD DATE: 06/30/2000
================================================================================
LIQUIDATED LOAN DETAIL
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------------
Final
Recovery Offering Gross Proceeds Aggregate
Loan Determination Document Appraisal Appraisal Actual Gross as a % of Liquidation
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance Expenses *
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------------------------
Current Total
-------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
--------------------------------------------------------------------------------
Net Net Proceeds Repurchased
Loan Liquidation as a % of Realized by Seller
Number Proceeds Actual Balance Loss (Y/N)
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
--------------------------------------------------------------------------------
Current Total
--------------------------------------------------------------------------------
Cumulative Total
--------------------------------------------------------------------------------
</TABLE>
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
================================================================================
Copyright 1997, Norwest Bank Minnesota, N.A. Page 17 of 17
<PAGE>
EXHIBIT E-2A
FORM OF LOAN PERIODIC UPDATE FILE
[See Attached Schedule]
E-2A-1
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
SPECIFICATION DESCRIPTION/COMMENTS
------------- --------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (BytesPerInch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking Factor;
Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each
Loan Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Scheduled 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of
Balance current period that is part of the trust
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of current
period that is part of the trust
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One month less than
the date the loan is due for next payment
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The
Current Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate
The Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final
Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To
Calculate The Current Period Remittance Int.
</TABLE>
E-2A-2
<PAGE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The
Next Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To
Calc Of The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To
Change
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The
Current Period that goes to the Trust
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current
Period that goes to the trust
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For
Current Period for the trust
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount
Due For The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received
During The Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The
Related Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by
(Shortfall) Servicer per the Trust documents
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ARA Amount 33 Numeric 1000.00 Appraisal Reduction Amount = Excess Of The
Principal Balance Over The Defined Appraisal
Percentage or as defined in the Trust
documents
Most Recent ARA Date 34 AN YYYYMMDD Date Appraisal Reduction Amount Applied To Loan
Cumulative ARA Amount 35 Numeric 1000.00 Cumulative Appraisal Reduction Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End
Of The Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The
Current Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The
End Of The Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The
Current Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy
"Y", Else "N")
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same
date then print that date otherwise leave
empty
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same
date then print that date otherwise leave
empty
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be
Liquidation Remitted to the Trust per the Trust Documents
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted
from the Trust per the Trust Documents
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation
Proceeds Received (as defined in Trust
documents)
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the
value, if missing any then populate using the
"DSCR Indicator Legend" rule
Preceding Fiscal Year Operating 53 Numeric 1000.00 P55 - If Multiple properties then sum the
Expenses value, if missing any then populate using the
"DSCR Indicator Legend" rule
</TABLE>
E-2A-3
<PAGE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the
value, if missing any then populate using the
"DSCR Indicator Legend" rule
Preceding Fiscal Year Debt Svc 55 Numeric 1000.00 P57 - If Multiple properties then sum the
value, if missing any then populate using the
Amount "DSCR Indicator Legend" rule
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the
"DSCR Indicator Legend" rule.
Preceding Fiscal Yr Debt Svc Cvrge Ratio
using NOI
Preceding Fiscal Year Physical 57 Numeric 0.85 P59 - If Multiple properties, Use weighted
Occupancy average by using the calculation [Current
Allocated % (Prop) * Occupancy (Oper)] for
each Property, if missing any then leave
empty
Preceding Fiscal Year Financial 58 AN YYYYMMDD P53 - If Multiple properties and all the same
As of Date then print the date, if missing any then
leave empty
Second Preceding Fiscal Year 59 Numeric 1000.00 P61 - If Multiple properties then sum the
Revenue value, if missing any then populate using the
"DSCR Indicator Legend" rule
Second Preceding Fiscal Year 60 Numeric 1000.00 P62 - If Multiple properties then sum the
Operating Expenses value, if missing any then populate using the
"DSCR Indicator Legend" rule
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the
value, if missing any then populate using the
"DSCR Indicator Legend" rule
Second Preceding Fiscal Year Debt 62 Numeric 1000.00 P64 - If Multiple properties then sum the
Service Amount value, if missing any then populate using the
"DSCR Indicator Legend" rule
Second Preceding Fiscal Year DSCR 63 Numeric 2.55 P65 - If Multiple properties populate using the
(NOI) "DSCR Indicator Legend" rule. Second
Preceding Fiscal Year Debt Service Coverage
Ratio using NOI
Second Preceding Fiscal Year 64 Numeric 0.85 P66 - If Multiple properties, Use weighted
Physical Occupancy average by using the calculation [Current
Allocated % (Prop) * Occupancy (Oper)] for
each Property, if missing any then leave
empty
Second Preceding Fiscal Year 65 AN YYYYMMDD P60 - If Multiple properties and all the same
Financial As of Date then print the date, if missing any then
leave empty
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the
value, if missing any then populate using the
"DSCR Indicator Legend" rule
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the
value, if missing any then populate using the
"DSCR Indicator Legend" rule
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the
value, if missing any then populate using the
"DSCR Indicator Legend" rule
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the
value, if missing any then populate using the
"DSCR Indicator Legend" rule
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. Most Recent
Debt Service Coverage Ratio using NOI
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted
average by using the calculation [Current
Allocated % (Prop) * Occupancy (Oper)] for
each Property, if missing any then leave
empty
Most Recent Financial As of Start 72 AN YYYYMMDD P73 - If Multiple properties and all the same
Date then print the date, if missing any then
leave empty
Most Recent Financial As of End 73 AN YYYYMMDD P74 - If Multiple properties and all the same
Date then print the date, if missing any then
leave empty
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same
then print the date, if missing any then
leave empty
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the
value, if missing any then leave empty
</TABLE>
E-2A-4
<PAGE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Special Servicer 77 AN YYYYMMDD Date Transferred To The Special Servicer
Transfer Date
Most Recent Master Servicer 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary
Return Date Servicer
Date Asset Expected to Be 79 AN YYYYMMDD P26 - If Multiple properties then print the
Resolved or Foreclosed latest date from the affiliated properties.
If in Foreclosure Expected Date of
Foreclosure and if REO Expected Sale Date.
Blank 80 AN Blank Left blank on purpose. (Note: was previously
Year Renovated. Use the Property File field
15 instead)
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date
will be the same as setup file unless
the loan is modified and a new date assigned
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date,
Check Start & End Date Applies to field 66
to 73. If Multiple properties and all the
same then print the value, if missing any or
if the values are not the same, then leave
empty
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information
changed last in the setup file by loan
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or properties
were contributed. For Multiple properties
print the latest date from the affiliated
properties
Number of Properties 86 Numeric 13.00 S54 - Number of properties currently attached
to the loan
Preceding Year DSCR Roll up 87 AN Text Flag used to explain how the DSCR was
Indicator calculated when there are multiple
properties. See DSCR Indicator Legend.
Second Preceding Year DSCR Roll 88 AN Text Flag used to explain how the DSCR was
up Indicator calculated when there are multiple
properties. See DSCR Indicator Legend.
Most Recent DSCR Roll up 89 AN Text Flag used to explain how the DSCR was
Indicator calculated when there are multiple
properties. See DSCR Indicator Legend.
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was
calculated should be the same for each
financial period. See NOI/NCF Indicator
Legend. P84 If Multiple Properties and all
the same then print value, if missing any or
if the values are not the same, then leave
empty.
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower
blank if never assumed
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow
related to Financial As of Date L58. If
Multiple properties then sum the value, if
missing any then populate using the "DSCR
Indicator Legend" rule
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service Coverage
Ratio using NCF related to Financial As of
Date L58. If Multiple properties populate
using the "DSCR Indicator Legend" rule.
Second Preceding FY NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net Cash
Flow related to Financial As of Date L65. If
Multiple properties then sum the value, if
missing any then populate using the "DSCR
Indicator Legend" rule
Second Preceding FY DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service
Coverage Ratio using Net Cash Flow related to
Financial As of Date L65. If Multiple
properties populate using the "DSCR Indicator
Legend" rule.
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to
Financial As of Ending Date L73. If Multiple
properties then sum the value, if missing
any then populate using the "DSCR Indicator
Legend" rule
</TABLE>
E-2A-5
<PAGE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio
using Net Cash Flow related to Financial
As of Ending Date L73. If Multiple
properties populate using the "DSCR Indicator
Legend" rule.
</TABLE>
E-2A-6
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
WORKOUT STRATEGY CODE LEGEND STATUS OF MORTGAGE LOAN LEGEND
---------------------------- ------------------------------
<S> <C> <C>
1 Modification A Payment Not Received But Still In Grace Period
2 Foreclosure B Late Payment But Less Than 30 days Delinquent
3 Bankruptcy 0 Current
4 Extension 1 3059 Days Delinquent
5 Note Sale 2 6089 Days Delinquent
6 DPO 3 90+ Days Delinquent
7 REO 4 Assumed Scheduled Payment (Performing Matured Balloon)
8 Resolved 5 Defeasance
9 Pending Return to Master Servicer 7 Foreclosure
10 Deed In Lieu Of Foreclosure 9 REO
11 Full Payoff
12 Reps and Warranties
13 Other or TBD MODIFICATION CODE LEGEND
------------------------
1 Maturity Date Extension
LIQUIDATION/PREPAYMENT CODE LEGEND 2 Amortization Change
---------------------------------- 3 Principal WriteOff
4 Combination
1 Partial Liq'n (Curtailment)
2 Payoff Prior To Maturity
3 Disposition
4 Repurchase/Substitution DSCR INDICATOR LEGEND
5 Full Payoff At Maturity ---------------------
6 DPO P Partial Not all properties received financials, servicer to leave empty
7 Liquidation A Average Not all properties received financials, servicer allocates Debt
8 Payoff w/penalty Service only to properties where financials are received.
9 Payoff w/yield Maintenance F Full All Statements Collected for all properties
10 Curtailment w/ Penalty W Worst Case Not all properties received financials, servicer allocates 100%
11 Curtailment w/ Yield Maintenance of Debt Service to all properties where financials are received.
N None Collected no financials were received
C Consolidated All properties reported on one "rolled up" financial from the
borrower
NOI/NCF INDICATOR LEGEND
------------------------
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
</TABLE>
E-2A-7
<PAGE>
EXHIBIT E-2B
FORM OF PROPERTY FILE
[See Attached Schedule]
E-2B-1
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
CROSS REFERENCED AS "P"
SPECIFICATION DESCRIPTION/COMMENTS
------------- --------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001001, 1000002
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are Crossed, For
example : "X02-1" would be populated in this
field for all related loans, "X02-2" would be
populated for the next group of related loans.
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN FL
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT
# Of Units/Beds/Rooms At Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial Release,
5= Released, 6= Same as at Contribution
Allocated Percentage of Loan at 19 Numeric 0.75 Issuer to allocate loan % attributable to
Contribution property for multiproperty loans
LOAN FIELD
FIELD NAME REFERENCE
---------- ---------
Transaction Id S1, L1
Loan ID
S3, L3
Prospectus Loan ID
S4, L4
Property ID
Distribution Date L5
Cross-Collateralized Loan Grouping S75
Property Name S55
Property Address S56
Property City S57
Property State S58
Property Zip Code S59
Property County S60
Property Type Code S61
Year Built S64
Year Last Renovated
Net Square Feet At Contribution S62
# Of Units/Beds/Rooms At Contribution S63
Property Status
Allocated Percentage of Loan at
Contribution
</TABLE>
E-2B-2
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in by
Issuer or Underwriter, use
Underwritting NOI or NCF to calculate
Current Allocated Ending Scheduled Loan 21 Numeric 5900900.00 Calculation based on Current Allocated Percentage
and Current Ending Scheduled Principal Balance
(L7) for associated loan.
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No ground lease
1. Total Reserve Balance 3. 4. 5. 25000.00 7. For Maintenance, Repairs, & Environmental.
(Excludes Tax & Insurance Escrows). An
amount should be printed if the value in
Setup File field 77 is "Y"
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraisal Value 25 Numeric 1000000.00
Date Asset Expected to Be Resolved or 26 AN YYYYMMDD Could be different dates for different properties.
If in Foreclosure Expected Date of Foreclosure
and if REO Expected Sale Date.
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Most Recent Physical Occupancy 29 Numeric 0.75
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective date of the Rent
Roll
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12 months
% Sq. Feet expiring 112 months 32 Numeric 0.2 Apply to Property Types RT, IN, WH, OF, MU, OT
% Sq. Feet expiring 1324 months 33 Numeric 0.2 Apply to Property Types RT, IN, WH, OF, MU, OT
% Sq. Feet expiring 2536 months 34 Numeric 0.2 Apply to Property Types RT, IN, WH, OF, MU, OT
% Sq. Feet expiring 3748 months 35 Numeric 0.2 Apply to Property Types RT, IN, WH, OF, MU, OT
% Sq. Feet expiring 4960 months 36 Numeric 0.2 Apply to Property Types RT, IN, WH, OF, MU, OT
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial *Only if
disclosed in the offering document
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial *Only if
disclosed in the offering document
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial *Only if
disclosed in the offering document
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's
Fiscal Year. For example: "12"
Contribution Financials As Of Date 44 AN YYYYMMDD
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At the
Property Level
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available.
Appraisal Value At Contribution 49 Numeric 1000000.00
Appraisal Date At Contribution 50 AN YYYYMMDD
LOAN FIELD
FIELD NAME REFERENCE
---------- ---------
Current Allocated Percentage
Current Allocated Ending Scheduled Loan L7
Ground Lease (Y/S/N) S74
1. Total Reserve Balance 8. S77
Most Recent Appraisal Date L74
Most Recent Appraisal Value L75
Date Asset Expected to Be Resolved or L79
Foreclosure Date L42
REO Date L43
Most Recent Physical Occupancy L71
Occupancy As of Date
Date Lease Rollover Review
% Sq. Feet expiring 112 months S62
% Sq. Feet expiring 1324 months S62
% Sq. Feet expiring 2536 months S62
% Sq. Feet expiring 3748 months S62
% Sq. Feet expiring 4960 months S62
Largest Tenant
Square Feet of Largest Tenant
2nd Largest Tenant
Square Feet of 2nd Largest Tenant
3rd Largest Tenant
Square Feet of 3rd Largest Tenant
Fiscal Year End Month
Contribution Financials As Of Date S72
Revenue At Contribution
S70
Operating Expenses At Contribution
S71
NOI At Contribution
S65
DSCR (NOI) At Contribution S66
Appraisal Value At Contribution S67
Appraisal Date At Contribution S68
</TABLE>
E-2B-3
<PAGE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Physical Occupancy At Contribution 51 Numeric 0.9
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00
Preceding Fiscal Year NOI 56 Numeric 1000000.00
Preceding Fiscal Yr Debt Service Amount 57 Numeric 1000000.00 Calculate using P20(percentage) to get the
allocated amount for each property
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated debt
service amount
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9
Second Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00
Second Preceding FY Operating Expenses 62 Numeric 1000000.00
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00
Second Preceding FY Debt Service Amount 64 Numeric 1000000.00 Calculate using P20(percentage) to get the
allocated amount for each property
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3 Uses the property NOI and the allocated debt
service amount
Second Preceding FY Physical Occupancy 66 Numeric 0.9
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20(percentage) to get the
allocated amount for each property
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt
service amount
Most Recent Financial As of Start Date 73 AN YYYYMMDD Start date used to calculate Most Recent
information either YTD or trailing 12 months
Most Recent Financial As of End Date 74 AN YYYYMMDD End date used to calculate Most Recent
information either YTD or trailing 12 months
Most Recent Financial Indicator 75 AN T or Y T= Trailing 12 months Y = Year to Date
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match the
prospectus if available.
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate.
Should match the prospectus if available.
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related to
Financial As of Date P53.
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage Ratio
using NCF related to Financial As of Date P53.
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow
related to Financial As of Date P60.
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service Coverage
Ratio using Net Cash Flow related to Financial As
of Date P60.
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to Financial As
of Date P74.
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of Date P74.
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was calculated
should be the same for each financial period.
See NOI/NCF Indicator Legend.
LOAN FIELD
FIELD NAME REFERENCE
---------- ---------
Physical Occupancy At Contribution S69
Date of Last Inspection
Preceding Fiscal Year Financial As of Date L58
Preceding Fiscal Year Revenue L52
Preceding Fiscal Year Operating Expenses L53
Preceding Fiscal Year NOI L54
Preceding Fiscal Yr Debt Service Amount
L55
Preceding Fiscal Year DSCR (NOI)
L56
Preceding Fiscal Year Physical Occupancy L57
Second Preceding FY Financial As of Date L65
Second Preceding Fiscal Year Revenue L59
Second Preceding FY Operating Expenses L60
Second Preceding Fiscal Year NOI L61
Second Preceding FY Debt Service Amount L62
Second Preceding Fiscal Year DSCR (NOI) L63
Second Preceding FY Physical Occupancy L64
Property Contribution Date L85
Most Recent Revenue L66
Most Recent Operating Expenses L67
Most Recent NOI L68
Most Recent Debt Service Amount L69
Most Recent DSCR (NOI) L70
Most Recent Financial As of Start Date L72
Most Recent Financial As of End Date L73
Most Recent Financial Indicator L82
NCF At Contribution S83
DSCR (NCF) At Contribution S84
Preceding Fiscal Year NCF L92
Preceding Fiscal Year DSCR (NCF) L93
Second Preceding FY NCF L94
Second Preceding FY DSCR (NCF) L95
Most Recent NCF L96
Most Recent DSCR (NCF) L97
NOI/NCF Indicator L90
<CAPTION>
NOI/NCF INDICATOR
LEGEND
-----------------
<S> <C>
CMSA Calculated using CMSA standard
PSA Calculated using a definition given in the PSA
U/W Calculated using the underwriting method
</TABLE>
E-2B-4
<PAGE>
EXHIBIT E-2C
FORM OF LOAN SET-UP FILE
[See Attached Schedule]
E-2C-1
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
SPECIFICATION DESCRIPTION/COMMENTS
------------- --------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media
(magnetic tape or diskette)
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number
Assigned To Each Loan Group Within
An Issue
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Number
Assigned To Each Collateral Item
In A Pool
Prospectus Loan Id 4 AN 123 Unique Identification Number
Assigned To Each Collateral Item
In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At
Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until
Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan
Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The
Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage
Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date
Borrower Is Permitted To Remit
Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365,
3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78'S
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lockout End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Yield Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Penalty
Prepayment Terms Description 21 AN Text Should reflect the information in
Annex A or use the format of
LO(36), YM(28), 7(12), O(3)
ARM Index Code 22 AN A See Arm Index Code Legend
</TABLE>
E-2C-2
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The
Determination Of The Gross
Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must
Pay On An Arm Loan Per The Loan
Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must
Pay On An Arm Loan Per The Loan
Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The
Note Rate Allowed Per The Loan
Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note
Rate Allowed Per The Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I
Payment Allowed Per The Loan
Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The
P&I Payment Allowed Per The Loan
Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly,
6=SemiAnnually, 12=Annually...
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly,
6=SemiAnnually, 12=Annually,
365=Daily
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly,
6=SemiAnnually, 12=Annually,
365=Daily
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index
Plus Margin (See Rounding Code
Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding
Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To
Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the
Original Balance Allowed Per The
Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the
Original Balance Allowed Per The
Loan Agreement
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until
Maturity Of Loan At Cutoff
Remaining Amort Term At Contribution 42 Numeric 360 Remaining Number Of Months Loan
Amortized Over At Cutoff
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The
Mortgage Loan At Contribution
Scheduled Principal Balance At Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of
The Mortgage Loan At Contribution
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest
Rate Applicable To The Calculation
Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The
Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine the Net Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine the Net Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine the Net Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine the Net Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate To
Determine the Net Rate
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate
Applicable To The Calculation Of
Remittance Interest
Periodic P&I Payment At Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal &
Interest Payment at Contribution
# Of Properties at Contribution 54 Numeric 13 The Number Of Properties Underlying
The Mortgage Loan
Property Name 55 AN Text P7 - If Multiple properties print
"Various"
Property Address 56 AN Text P8 - If Multiple properties print
"Various"
Property City 57 AN Text P9 - If Multiple properties have the
same city then print the city,
otherwise print "Various".
Missing information print
"Incomplete"
Property State 58 AN Text P10 - If Multiple properties have
the same state then print the
state, otherwise print "XX" to
represent various. Missing
information print "ZZ"
</TABLE>
E-2C-3
<PAGE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
Property Zip Code 59 AN Text P11 - If Multiple properties have
the same zip code then print the
zip code, otherwise print
"Various". Missing information
print "Incomplete"
Property County 60 AN Text P12 - If Multiple properties have
the same county then print the
county, otherwise print "Various".
Missing information print "Incomplete"
Property Type Code 61 AN MF P13 - If Multiple properties have
the same property type code then
print the property code, otherwise
print "XX" to represent various.
Missing information print "ZZ"
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if
all the same Property Type, sum
the values, if missing any leave
empty
# Of Units/Beds/Rooms At Contribution 63 Numeric 75 P17 - For Multiple properties, if
all the same Property Type, sum
the values, if missing any leave
empty
Year Built 64 AN YYYY P14 - If Multiple properties have
the same Year Built then print
Year Built else leave empty
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the
values, if missing any then
populate using the "DSCR Indicator
Legend" rule. Should match the
prospectus if available.
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties
populate using the "DSCR Indicator
Legend" rule. DSCR At Contribution
using NOI. Should match the
prospectus if available.
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the
values, if missing any then leave
empty
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
Physical Occupancy At Contribution 69 Numeric 0.88 P51 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupancy (Oper) ] for
each Property, if missing one then
leave empty
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule. Should match the
prospectus if available.
Operating Expenses At Contribution 71 Numeric 100000.00 P46 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule. Should match the
prospectus if available.
Contribution Financials As Of Date 72 AN YYYYMMDD P44 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground
lease, P22 - If Multiple properties
and any one property is "Y" or "S"
print "Y"
CrossCollateralized Loan Grouping 75 AN Text P6 - All Loans With The Same Value
Are Crossed, For example : "X02-1"
would be populated in this field
for all related loans, "X02-2"
would be populated for the next
group of related loans.
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No Referring to Taxes
and Insurance
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No Referring to Reserves
other than Taxes and Insurance. If
any property has a value > 0 in
P23, this field should be "Y"
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
Hyper Amortizing Begin Date 79 AN YYYYMMDD Date used to track Anticipated
Repayment Date Loans
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the
information was last changed by
loan
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the
values, if missing any then
populate using the "DSCR Indicator
Legend" rule. Net Cash Flow At
Contribution. Should match the
prospectus if available.
</TABLE>
E-2C-4
<PAGE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
---------- ------ ---- ------- --------------------
<S> <C> <C> <C> <C>
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties
populate using the "DSCR Indicator
Legend" rule. DSCR At Contribution
using NCF to calculate. Should
match the prospectus if available.
DSCR Roll up Indicator at Contribution 85 AN Text Flag used to explain how the DSCR
was calculated when there are
multiple properties. See DSCR
Indicator Legend.
Loan Contributor to Securitization 86 AN Text Name of party contributing the loan
at Securitization
</TABLE>
E-2C-5
<PAGE>
<TABLE>
<CAPTION>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
ROUNDING CODE ARM INDEX CODE
LEGEND LEGEND
------------- --------------
<S> <C> <C> <C>
1 Unrounded A 11 FHLB COFI (1 Month)
2 Nearest Percentage Increment B 11 FHLB COFI (6 Month)
3 Up To Nearest Percentage Increment C 1 Year CMT Weekly Average Treasury
4 Down To Nearest Percentage Increment D 3 Year CMT Weekly Average Treasury
E 5 Year CMT Weekly Average Treasury
F Wall Street Journal Prime Rate
PROPERTY TYPES CODE G 1 Month LIBOR
LEGEND H 3 Month LIBOR
I 6 Month LIBOR
MF Multifamily J National Mortgage Index Rate
RT Retail All Others Use Short Text Description
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park PAYMENT TYPE CODE
OF Office LEGEND
MU Mixed Use -----------------
LO Lodging 1 Fully Amortizing
SS Self Storage 2 Amortizing Balloon
OT Other 3 Interest Only / Balloon
4 Interest Only / Amortizing
5 Interest Only / Amortizing / Balloon
6 Principal Only
7 Hyper - Amortization
9 Other
DSCR INDICATOR
LEGEND
--------------
P Partial Not all properties received
financials, servicer to leave empty
A Average - Not all properties received
financials, servicer allocates Debt Service
only to properties where financials are
received.
F Full - All Statements Collected for all
properties
W Worst Case - Not all properties received
financials, servicer allocates 100% of Debt
Service to all properties where financials
are received.
N None Collected - no financials were received
C Consolidated - All properties reported on one
"rolled up" financial from the borrower
</TABLE>
E-2C-6
<PAGE>
EXHIBIT E-3
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
[See Attached Schedule]
E-3-1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI____ or NCF______
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
P4 P9 P10 P52 P21 L8 P57 S72 S69 S70 S83 S84 P60 P66 P61 P63 P65
OR OR
P80 P81
------------------------------------------------------------------------------------------------------------------------------------
ORIGINAL 2ND PRECEDING ANNUAL
UNDERWRITING OPERATING
------------------------------------------------------------------------------------------------------------------------------------
INFORMATION INFORMATION
------------------------------------------------------------------------------------------------------------------------------------
BASE YEAR AS OF _______ NORMALIZED
------------------------------------------------------------------------------------------------------------------------------------
Property City State Last Current Paid Allocated Financial % Total $ (1) Financial % Total $ (1)
ID Property Allocated Thru Debt Info as of Occ Revenue NCF DSCR Info as Occ Revenue NCF DSCR
Inspect Loan Date Service Date of Date
Date Amount
------------------------------------------------------------------------------------------------------------------------------------
yyyymmdd yyyymmdd yyyymmdd
------------------------------------------------------------------------------------------------------------------------------------
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 File and Loan Periodic Update File.
Total: $ $ ** WA $ $ WA WA $ $ WA
====================================================================================================================================
<CAPTION>
----------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
P53 P59 P54 P56 P58 P73 P74 P29 P68 P70 P72 (2)
OR OR OR OR
P78 P79 P82 P83
----------------------------------------------------------------------------------------------------
PRECEDING ANNUAL OPERATING MOST RECENT FINANCIAL NET CHANGE
----------------------------------------------------------------------------------------------------
INFORMATION INFORMATION
----------------------------------------------------------------------------------------------------
AS OF _______ NORMALIZED *NORMALIZED OR ACTUAL PRECEDING & BASIS
----------------------------------------------------------------------------------------------------
Financial % Total $ (1) FS FS % Total $ (1) % % (1)
Info as of Occ Revenue NCF DSCR Start End Occ Revenue NCF DSCR Occ Total DSCR
Date Date Date Revenue
----------------------------------------------------------------------------------------------------
yyyymmdd yyyy yyyymmdd
mmdd
----------------------------------------------------------------------------------------------------
WA $ $ WA WA $ $ WA WA $ WA
====================================================================================================
(1) DSCR should match to Operating Statement and is normally calculated using NOI or NCF / Debt Service times the allocated
loan percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant and applicable.
</TABLE>
E-3-2
<PAGE>
EXHIBIT E-4
FORM OF DELINQUENT LOAN STATUS REPORT
[See Attached Schedule]
E-4-1
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
S4 S55 S61 S57 S58 S62 L8 L7 L37 L39 L38
or
S63
--------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
--------------------------------------------------------------------------------------------------------------------------
Loan Short Name Property City State Sq Paid Scheduled Total P&I Other Total
Prospectus (When Type Ft Thru Loan Advances Expense T & I
ID Appropriate) or Date Balance Outstanding Advance Advances
Units Outstanding Outstanding
--------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
--------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
--------------------------------------------------------------------------------------------------------------------------
60 TO 89 DAYS DELINQUENT
--------------------------------------------------------------------------------------------------------------------------
30 TO 59 DAYS DELINQUENT
--------------------------------------------------------------------------------------------------------------------------
CURRENT AND AT SPECIAL SERVICER
--------------------------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
L25 L10 L11 L58 L54 L56 L74 L75 L35 L77
or or or
L73 L68/ L70/
L92 L93
or or
L96 L97
---------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (f) (.90*f)-e
---------------------------------------------------------------------------------------------------------------------------
Total Current Current Maturity LTM LTM LTM Valuation Appraisal Loss Total Transfer
Exposure Monthly Interest Date NOI/ NOI/ DSCR Date BPO or using Appraisal Date
P&I Rate NCF NCF (NOI/ Internal 90% Reduction
Date NCF) Value** Appr. Realized
or
BPO (f)
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
------------------------------------
L79 L76
------------------------------------
------------------------------------
Date Workout Comments
Asset Strategy*
Expected
to be
Resolved
or
Foreclosed
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
FCL = Foreclosure
--------------------------------------------------------------------------------
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing
12 months, if available.
--------------------------------------------------------------------------------
*Workout Strategy should match the CSSA Loan Periodic Update 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).
--------------------------------------------------------------------------------
**BPO - Broker opinion
--------------------------------------------------------------------------------
E-4-2
<PAGE>
EXHIBIT E-5
FORM OF HISTORICAL LOAN MODIFICATION REPORT
[See Attached Schedule]
E-5-1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
S4 S57 S58 L49 L48 L7* L7* L50*
------------------------------------------------------------------------------------------------------------------------------------
Prospectus City State Mod/ Extension Effective Balance Balance at the Old Rate # Mths
ID Extension per Docs or Date When Sent Effective Date of for Rate
Flag Servicer to Special Rehabilitation Change
Servicer
------------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
------------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
------------------------------------------------------------------------------------------------------------------------------------
Total For All Loans:
------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
L50* L25* L25* L11* L11* L47
-----------------------------------------------------------------------------------------------------------------------
New Old P&I New P&I Old New Total # (1) Realized (2) Est. COMMENT
Rate Maturity Maturity Mths for Loss to Future
Change of Trust $ Interest Loss
Mod to Trust $
(Rate Reduction)
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
* The information in these columns is from a particular point in time and should
not change on this report once assigned.
--------------------------------------------------------------------------------
Future modifications 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.
--------------------------------------------------------------------------------
E-5-2
<PAGE>
EXHIBIT E-6
FORM OF HISTORICAL LIQUIDATION REPORT
[See Attached Schedule]
E-6-1
<PAGE>
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S4 S55 S61 S57 S58 L75 L29 L45 L7
-----------------------------------------------------------------------------------------------------------------------------
(c) = b/a (a) (b) (d) (e)
-----------------------------------------------------------------------------------------------------------------------------
Prospectus Short Name Property City State % Latest Effective Sales Price Net Amt Scheduled
Loan ID (When Type Received Appraisal Date of Received Balance
Appropriate) From or Liquidation from Sale
Liquidation Brokers
Opinion
-----------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
-----------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
-----------------------------------------------------------------------------------------------------------------------------
Total all Loans:
-----------------------------------------------------------------------------------------------------------------------------
Current Month Only:
-----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
L37 L39+L38 L47
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
(f) (g) (h) (i)=d-(f+g+h) (k) (m) (n)=k+m (o)=n/e
------------------------------------------------------------------------------------------------------------------------------
Total P&I Total T & I Servicing Net Proceeds Realized Loss Date Minor Date of Total Loss Loss % of
Advance and Other Fees Loss Adj to Minor with Scheduled
Outstanding Expense Expense Passed Trust Adj Adjustment Balance
Advance thru Passed
Outstanding thru
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees
charged by the Special Servicer.
--------------------------------------------------------------------------------
E-6-2
<PAGE>
EXHIBIT E-7
FORM OF NOI ADJUSTMENT WORKSHEET
[See Attached Schedule]
E-7-1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL NOI ADJUSTMENT WORKSHEET (inclds. Retail/Office/Ind/Whs/Mixed use/Self Storage)
------------------------------------------------------------------------------------------------------------------------------------
as of MM/DD/YY
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PROPERTY OVERVIEW
------------------------------------------------------------------------------------------------------------------------------------
Prospectus ID
------------------------------------------------------------------------------------------------------------------------------------
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
------------------------------------------------------------------------------------------------------------------------------------
Property Name
------------------------------------------------------------------------------------------------------------------------------------
Property Type
------------------------------------------------------------------------------------------------------------------------------------
Property Address, City, State
------------------------------------------------------------------------------------------------------------------------------------
<C>
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units
------------------------------------------------------------------------------------------------------------------------------------
Year Built/Year Renovated
------------------------------------------------------------------------------------------------------------------------------------
<C>
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit
------------------------------------------------------------------------------------------------------------------------------------
Year of Operations
------------------------------------------------------------------------------------------------------------------------------------
Occupancy Rate (physical)
------------------------------------------------------------------------------------------------------------------------------------
Occupancy Date
------------------------------------------------------------------------------------------------------------------------------------
Average Rental Rate
------------------------------------------------------------------------------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing Commission and TI's
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
INCOME: YYYY Notes
------------------------------------------------------------------------------------------------------------------------------------
Borrower Adjustment Normalized
------------------------------------------------------------------------------------------------------------------------------------
Statement Classification Actual
------------------------------------------------------------------------------------------------------------------------------------
Gross Potential Rent (2)
------------------------------------------------------------------------------------------------------------------------------------
Less: Vacancy/collection loss
------------------------------------------------------------------------------------------------------------------------------------
OR
------------------------------------------------------------------------------------------------------------------------------------
Base Rent (2)
------------------------------------------------------------------------------------------------------------------------------------
Expense Reimbursement
------------------------------------------------------------------------------------------------------------------------------------
Percentage Rent
------------------------------------------------------------------------------------------------------------------------------------
Other Income/Parking Income
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Effective Gross Income
------------------------------------------------------------------------------------------------------------------------------------
(2)Use either gross potential (with Vacancy/Collection Loss) or Base Rents; use negative $amt for Vacancy/Collection Loss
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
------------------------------------------------------------------------------------------------------------------------------------
Real Estate Taxes
------------------------------------------------------------------------------------------------------------------------------------
Property Insurance
------------------------------------------------------------------------------------------------------------------------------------
Utilities
------------------------------------------------------------------------------------------------------------------------------------
Repairs and Maintenance
------------------------------------------------------------------------------------------------------------------------------------
Janitorial
------------------------------------------------------------------------------------------------------------------------------------
Management Fees
------------------------------------------------------------------------------------------------------------------------------------
Payroll & Benefits Expense
------------------------------------------------------------------------------------------------------------------------------------
Advertising & Marketing
------------------------------------------------------------------------------------------------------------------------------------
Professional Fees
------------------------------------------------------------------------------------------------------------------------------------
General and Administrative
------------------------------------------------------------------------------------------------------------------------------------
Other Expenses For self-storage include franchise fees
------------------------------------------------------------------------------------------------------------------------------------
Ground Rent
------------------------------------------------------------------------------------------------------------------------------------
Total Operating Expenses
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Operating Expense Ratio
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Net Operating Income
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Leasing Commissions (3)
------------------------------------------------------------------------------------------------------------------------------------
Tenant Improvements (3)
------------------------------------------------------------------------------------------------------------------------------------
Capital Expenditures
------------------------------------------------------------------------------------------------------------------------------------
Extraordinary Capital Expenditures
------------------------------------------------------------------------------------------------------------------------------------
Total Capital Items
------------------------------------------------------------------------------------------------------------------------------------
(3) Actual current yr, but normalize for annual if possible via contractual, U/W or other data
------------------------------------------------------------------------------------------------------------------------------------
Net Cash Flow
------------------------------------------------------------------------------------------------------------------------------------
Debt Service (per Servicer)
------------------------------------------------------------------------------------------------------------------------------------
Net Cash Flow after debt service
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
DSCR: (NOI/Debt Service)
------------------------------------------------------------------------------------------------------------------------------------
DSCR: (NCF/Debt Service)
------------------------------------------------------------------------------------------------------------------------------------
Source of Financial Data:
------------------------------------------------------------------------------------------------------------------------------------
(i.e.. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
Notes and Assumptions: This report should be completed annually for "Normalization" of Borrower's numbers. Methodology used is per
MBA/CSSA Standard
------------------------------------------------------------------------------------------------------------------------------------
Methodology unless otherwise noted. The "Normalized" column and corresponding comments should roll through to the Operating
statement Analysis Report
------------------------------------------------------------------------------------------------------------------------------------
Income Comments:
------------------------------------------------------------------------------------------------------------------------------------
Expense Comments:
------------------------------------------------------------------------------------------------------------------------------------
Capital Items Comments:
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
E-7-2
<PAGE>
EXHIBIT E-8
FORM OF OPERATING STATEMENT ANALYSIS REPORT
[See Attached Schedule]
E-8-1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT (inclds. Retail/Office/Ind/Whs/Mixed use)
------------------------------------------------------------------------------------------------------------------------------------
as of MM/DD/YY
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
PROPERTY OVERVIEW
------------------------------------------------------------------------------------------------------------------------------------
Prospectus ID
------------------------------------------------------------------------------------------------------------------------------------
Current Scheduled Loan Balance/Paid to Date Current Allocated Loan Amount %
------------------------------------------------------------------------------------------------------------------------------------
Property Name
------------------------------------------------------------------------------------------------------------------------------------
Property Type
------------------------------------------------------------------------------------------------------------------------------------
Property Address, City, State
------------------------------------------------------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units
------------------------------------------------------------------------------------------------------------------------------------
Year Built/Year Renovated
------------------------------------------------------------------------------------------------------------------------------------
Cap Ex Reserve (annually)/per Unit.etc. (1) specify annual/per unit
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Year of Operations Underwriting MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------------------------------------------------------------------------------------------------------------------------------
Occupancy Rate (physical)
------------------------------------------------------------------------------------------------------------------------------------
Occupancy Date
------------------------------------------------------------------------------------------------------------------------------------
Average Rental Rate
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing Commission and TI's
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
INCOME:
------------------------------------------------------------------------------------------------------------------------------------
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Period Ended Underwriting 3rd 2nd Preceding Yr. TTM/YTD YYYY-U/W YYYY-YYYY
Preceding Preceding (2)
------------------------------------------------------------------------------------------------------------------------------------
Statement Classification(yr) Base Line (fm NOI Adj as of Variance Variance
Sheet) / /98
------------------------------------------------------------------------------------------------------------------------------------
Gross Potential Rent (3)
------------------------------------------------------------------------------------------------------------------------------------
Less: Vacancy/collection loss
------------------------------------------------------------------------------------------------------------------------------------
OR
------------------------------------------------------------------------------------------------------------------------------------
Base Rent (3)
------------------------------------------------------------------------------------------------------------------------------------
Expense Reimbursement
------------------------------------------------------------------------------------------------------------------------------------
Percentage Rent
------------------------------------------------------------------------------------------------------------------------------------
Other Income/Parking Income
------------------------------------------------------------------------------------------------------------------------------------
*Effective Gross Income
------------------------------------------------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
------------------------------------------------------------------------------------------------------------------------------------
(3) Use either Gross Potential (with Vacancy/Collection Loss) or Base Rents; use negative $amt for Vacancy/Collection Loss
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
------------------------------------------------------------------------------------------------------------------------------------
Real Estate Taxes
------------------------------------------------------------------------------------------------------------------------------------
Property Insurance
------------------------------------------------------------------------------------------------------------------------------------
Utilities
------------------------------------------------------------------------------------------------------------------------------------
Repairs and Maintenance
------------------------------------------------------------------------------------------------------------------------------------
Janitorial
------------------------------------------------------------------------------------------------------------------------------------
Management Fees
------------------------------------------------------------------------------------------------------------------------------------
Payroll & Benefits
------------------------------------------------------------------------------------------------------------------------------------
Advertising & Marketing
------------------------------------------------------------------------------------------------------------------------------------
Professional Fees
------------------------------------------------------------------------------------------------------------------------------------
General and Administrative
------------------------------------------------------------------------------------------------------------------------------------
Other Expenses
------------------------------------------------------------------------------------------------------------------------------------
Ground Rent
------------------------------------------------------------------------------------------------------------------------------------
*Total Operating Expenses
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Operating Expense Ratio
------------------------------------------------------------------------------------------------------------------------------------
*Net Operating Income
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Leasing Commissions
------------------------------------------------------------------------------------------------------------------------------------
Tenant Improvements
------------------------------------------------------------------------------------------------------------------------------------
Capital Expenditures
------------------------------------------------------------------------------------------------------------------------------------
Extraordinary Capital Expenditures
------------------------------------------------------------------------------------------------------------------------------------
Total Capital Items
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
*Net Cash Flow
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Debt Service (per Servicer)
------------------------------------------------------------------------------------------------------------------------------------
*Net Cash Flow after Debt Service
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
*DSCR: (NOI/Debt Service)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
*DSCR: (NCF/Debt Service)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Source of Financial Data:
------------------------------------------------------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
Notes and Assumptions: Years above will roll, always showing a 3yr
sequential history. Comments from the most recent NOI Adjustment
Worksheet
------------------------------------------------------------------------------------------------------------------------------------
should be carried forward to Operating Statement Analysis Report.
------------------------------------------------------------------------------------------------------------------------------------
Year-over-year variances (either higher or lower) must be explained and noted for the
following: 10% DSCR change, 15% EGI/Total Operating Expenses or Total Capital Items.
------------------------------------------------------------------------------------------------------------------------------------
Income Comments:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Expense Comments:
------------------------------------------------------------------------------------------------------------------------------------
Capital Items Comments:
------------------------------------------------------------------------------------------------------------------------------------
* Used in the CMSA Comparative Financial Status Report/CMSA Property
File/CMSA Loan Periodic Loan File. Note that information for multiple
property loans must be consolidated (if available) for reporting to the
CMSA Loan Periodic file.
</TABLE>
E-8-2
<PAGE>
EXHIBIT E-9
FORM OF REO STATUS REPORT
[See Attached Schedule]
E-9-1
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
P4 P7 P13 P9 P10 P16 L8 P21 L37 L39 L38
or
P17
----------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=a+b+c+d
----------------------------------------------------------------------------------------------------------------------------------
Property Short Name Property City State Sq Ft Paid Allocated Total Other Total Total
ID (When Type or Thru Loan P&I Expense T & I Exposure
Appropriate) Units Date Amount Advances Advance Advance
Outstanding Outstanding Outstanding
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
L25 L11 P53 P58 or P24 P25 L35 L77 P28
or P72/P79
P74 or P83
---------------------------------------------------------------------------------------------------------------------------
(f) (g) (h)=(.90*g)-e
---------------------------------------------------------------------------------------------------------------------------
Current Maturity LTM LTM Valuation Appraisal Appraisal Loss using Total Transfer REO
Monthly Date NOI/ DSCR Date BPO or BPO or 90% Appr. Appraisal Date Acquisition
P&I NCF (NOI/ Internal Internal Or Reduction Date
Date NCF) Value Value BPO (f) Realized
Source (1)
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------
P26
---------------------
---------------------
Date Asset Comments
Expected
to be
Resolved
---------------------
---------------------
---------------------
---------------------
---------------------
---------------------
---------------------
---------------------
---------------------
</TABLE>
REO's data reflected at the property level for relationships with more than one
(1) property should use the Allocated Loan Amount, and prorate all advances and
expenses or other loan level data as appropriate.
--------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion,
Int - Internal Value.
--------------------------------------------------------------------------------
E-9-2
<PAGE>
EXHIBIT E-10
FORM OF SERVICER WATCH LIST
[See Attached Schedule]
E-10-1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected As NOI______ or NCF________
------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L7 L8 L11 L56/L93 L70/L97
------------------------------------------------------------------------------------------------------------------------------------
Prospectus Short Name Property City State Scheduled Paid Maturity Preceding Most Comment/
Loan ID (When Appropriate) Type Loan Balance Thru Date Date Fiscal Yr Recent Action to
DSCR NOI/NCF DSCR NOI/NCF be taken
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list in descending balance order.
------------------------------------------------------------------------------------------------------------------------------------
Comment section should include reason and other pertinent information.
------------------------------------------------------------------------------------------------------------------------------------
Should not include loans that are specially serviced.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total: $
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
E-10-2
<PAGE>
EXHIBIT E-11
FORM OF BOND FILE
<TABLE>
<CAPTION>
CMSA
Bond Level File Layout
Bond Level Only - Reflects Distribution
Statements
Version 1.0 (12/31/98)
-------------------------------------------------- ---------------------------- --------------------------------------------
Format
Field Name # Type Example Description/Comments
-------------------------------------------------- ---------------------------- --------------------------------------------
-------------------------------------------------- ---------------------------- --------------------------------------------
Character Set ASCII
Field Delineation Comma
-------------------------------------------------- ---------------------------- --------------------------------------------
-------------------------------------------------- ---------------------------- --------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
(Consistent With CSSA Periodic Loan File)
Distribution Date 2 AN YYYYMMDD Date Payments Made To Certificateholders
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be
Considered Holder Of Record
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
Original Balance 6 Numeric 1000000.00 The Class Balance At Inception Of The Issue
Notional Flag 7 AN Y "Y" For Notional
Beginning Balance 8 Numeric 100000.00 The Outstanding Principal Balance Of The
Class At The Beginning Of The Current
Period
Scheduled Principal 9 Numeric 1000.00 The Scheduled Principal Paid
Unscheduled Principal 10 Numeric 1000.00 The Unscheduled Principal Paid
Total Principal Distribution 11 Numeric 1000.00 Total Principal Payment Made
Deferred Interest 12 Numeric 1000.00 Any Interest Added To The Class Balance
Including Negative Amortization
Realized Loss (Gain) 13 Numeric 1000.00 The Total Realized Loss of (Gain) Allocated
Cumulative Realized Losses 14 Numeric 100000.00 Realized Losses Allocated
Cumulative-To-Date.
Ending Balance 15 Numeric 1000.00 Outstanding Principal Balance Of The Class
At The End Of The Current Period
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To The
Calculation Of Current Period Remittance
Interest Rate
Current Remittance Rate / Pass-Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable To The
Calculation Of Current Period Remittance
Interest
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365,
3=Actual/360,4=Actual/Actual, 5=Actual/366
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable To
The Calculation Of Current Period
Remittance Interest
Interest Accrued 20 Numeric 1000.00 The Amount Of Accrued Interest
Prepayment Penalty/Premium Allocation 21 Numeric 1000.00 Total Amount Of Prepayment Penalties
Allocated
Yield Maintenance Allocation 22 Numeric 1000.00 Total Amount Of Yield Maintenance
Penalties Allocated
Other Interest Distribution 23 Numeric 1000.00 Other Specific Additions To Interest
Prepayment Interest Shortfall 24 Numeric 1000.00 Total Interest Adjustments For PPIS
Appraisal Reduction Allocation 25 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Other Interest Shortfall 26 Numeric 1000.00 Total Interest Adjustments Other Than PPIS
Total Interest Distribution 27 Numeric 1000.00 The Total Interest Payment Made
Cumulative Appraisal Reduction 28 Numeric 1000.00 Total Cumulative Appraisal Reduction
Allocated
Cummualtive Prepayment Penalty/Premium Allocation 29 Numeric 1000.00 Total Amount Of Prepayment Penalties
Allocated To Date
CummualtiveYield Maintenance Allocation 30 Numeric 1000.00 Total Amount Of Yield Maintenance
Penalties Allocated To Date
Beginning Unpaid Interest Balance 31 Numeric 1000.00 Outstanding Interest Shortfall At The
Beginning Of The Current Period
Ending Unpaid Interest Balance 32 Numeric 1000.00 Outstanding Interest Shortfall At The End
Of The Current Period
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By Duff &
Phelps
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By
Duff & Phelps
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Duff &
Phelps
Fitch - Orignal Rating 36 AN AAA The Original Rating Of The Class By Fitch
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of The Class By
Fitch
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Fitch
Moody's - Original Rating 39 AN AAA The Original Rating Of The Class By Moody's
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of The Class By
Moody's
Moody's - Date Transmitted from Rating Agency 41 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Moody's
Standard & Poors - Original Rating 42 AN AAA The Original Rating Of The Class By
Standard & Poors
Standard & Poors - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class By
Standard & Poors
Standard & Poors - Date Transmitted from Rating 44 AN YYYYMMDD The Date On Which The Most Recent Rating
Agency Was Provided To The Trustee By Standard &
Poors
-------------------------------------------------- ---------------------------- --------------------------------------------
</TABLE>
040298 Date the interest accrual period began
050198 Date the interest accrual period ended
043098 Date security had to held on to be
due this payment
E-11-1
<PAGE>
EXHIBIT E-12
FORM OF COLLATERAL SUMMARY FILE
<TABLE>
<CAPTION>
CMSA
Collateral Summary File Layout
Collateral Level Summary -Summarizes
CSSA 100.1 Periodic File
Version 1.0 (12/31/98)
Periodic
Field Format
Field Name Reference # # Type Example Description/Comments
Character Set ASCII
Field Delineation Comma
<S> <C> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX97001 Unique Identification Number Assigned To
Each Loan Group Within An Issue
Distribution Date 3 AN YYYYMMDD Date Payments Made To
Certificateholders
Original Loan Count 4 Numeric 100 Number of loans at time of securitization
Ending current period loan count 5 Numeric 99 Number of loans at end of current period
Ending current period 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at
collateral balance end of current period
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
1 month Delinquent - scheduled 8 Numeric 1000.00 Scheduled principal balance of loans one
balance month delinquent
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
2 months Delinquent - scheduled 10 Numeric 1000.00 Scheduled principal balance of loans two
balance months delinquent
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
3 months Delinquent - scheduled 12 Numeric 1000.00 Scheduled principal balance of loans
balance three months delinquent
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure -
overrides loans in delinquency
Foreclosure - scheduled balance 14 Numeric 1000.00 Scheduled principal balance of loans in
foreclosure - overrides loans in
delinquency
REO - number 15 Numeric 1 Number of REOs - overrides loans in
delinquency or foreclosure
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrrides loans in
delinquency or foreclosure
Specially serviced - number 17 Numeric 1 Number of specially serviced loans -
includes loans in delinquency,
foreclosure, REO
Specially serviced - scheduled 18 Numeric 1000.00 Scheduled principal of Specially
balance Serviced loans
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy - included
in delinquency aging category
In Bankruptcy - scheduled 20 Numeric 1000.00 Scheduled principal balance of loans in
balance bankruptcy - included in delinquency
aging category
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the
current period
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in
full for the current period.
Total unscheduled principal 27+28 23 Numeric 1000.00 Includes prepayments in full, partial
pre-payments, curtailments in the
current period
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield
maintenance penalties on the loans for
the period.
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current
period
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction
Allocated
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction
Allocated
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of
The Current Period
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances
At The End Of The Current Period
Other Expense Advance 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of
Outstanding The Current Period
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve
accounts pledged as credit enhancement
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve
accounts pledged as credit enhancement
Amortization WAM 34 Numeric 333 Weighted average maturity based on
amortization term
Maturity WAM 35 Numeric 333 Weighted average maturity based on term
to maturity
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to
calculate gross interest
</TABLE>
040298 Date the
interest
accrual
period
began
050198 Date the
interest
accrual
period
ended
043098 Date
security
had to
held on to
be due
this
payment
E-12-1
<PAGE>
EXHIBIT E-13
FORM OF FINANCIAL FILE
[See Attached Schedule]
E-13-1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
ATTACHMENT A:
------------------------------------------------------------------------------------------------------------------------------------
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Property Type
------------------------------------------------------------------------------------------------------------------------------------
Code/ Multi- Health
Sort Order Description Commercial family Care Lodging
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Income
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
010GROSRNT Gross Potential Rent o o o
------------------------------------------------------------------------------------------------------------------------
020VACANCY Less: Vacancy/Collection Loss o o o
------------------------------------------------------------------------------------------------------------------------
030BASERNT Base Rent o o
------------------------------------------------------------------------------------------------------------------------
040EXPREMB Expense Reimbursement o
------------------------------------------------------------------------------------------------------------------------
050PCTRENT Percentage Rent o
------------------------------------------------------------------------------------------------------------------------
060ROOMREV Room Revenue o
------------------------------------------------------------------------------------------------------------------------
070FOODBEV Food & Beverage Revenues o
------------------------------------------------------------------------------------------------------------------------
080PHONE Telephone Revenue o
------------------------------------------------------------------------------------------------------------------------
090OTHDREV Other Departmental Revenue o
------------------------------------------------------------------------------------------------------------------------
100PVTPAY Private Pay o
------------------------------------------------------------------------------------------------------------------------
110MEDCARE Medicare/Medicaid o
------------------------------------------------------------------------------------------------------------------------
120NURSING Nursing/Medical Income o
------------------------------------------------------------------------------------------------------------------------
130MEALS Meals Income o
------------------------------------------------------------------------------------------------------------------------
140LAUNDRY Laundry/Vending Income o
------------------------------------------------------------------------------------------------------------------------
150PARKING Parking Income o o
------------------------------------------------------------------------------------------------------------------------
160OTHERIN Other Income o o o o
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Expenses 270ROOMS Room (Department) o
------------------------------------------------------------------------------------------------------------------------
280FOODBEV Food & Beverage (Departmental) o
------------------------------------------------------------------------------------------------------------------------
290PHONE Telephone Expenses (Departmental) o
------------------------------------------------------------------------------------------------------------------------
300OTHDEPT Other Dept. Expenses o
------------------------------------------------------------------------------------------------------------------------
310RETAXES Real Estate Taxes o o o o
------------------------------------------------------------------------------------------------------------------------
320PROPINS Property Insurance o o o o
------------------------------------------------------------------------------------------------------------------------
330UTILITI Utilities o o o o
------------------------------------------------------------------------------------------------------------------------
340REPAIRS Repairs and Maintenance o o o o
------------------------------------------------------------------------------------------------------------------------
350JANITOR Janitorial o
------------------------------------------------------------------------------------------------------------------------
360FRANCHI Franchise Fee o
------------------------------------------------------------------------------------------------------------------------
370MANAGEM Management Fees o o o o
------------------------------------------------------------------------------------------------------------------------
380PAYROLL Payroll & Benefits o o o o
------------------------------------------------------------------------------------------------------------------------
390MARKETI Advertising & Marketing o o o o
------------------------------------------------------------------------------------------------------------------------
400PROFESS Professional Fees o o o o
------------------------------------------------------------------------------------------------------------------------
410GENERAL General and Administrative o o o o
------------------------------------------------------------------------------------------------------------------------
420ROOMS Room Expense - Housekeeping o
------------------------------------------------------------------------------------------------------------------------
430MEALS Meal expense o
------------------------------------------------------------------------------------------------------------------------
440OTHEREX Other Expenses o o o o
------------------------------------------------------------------------------------------------------------------------
450GROUNDR Ground Rent o o o o
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Resrv & 490LEASING Leasing Commissions o
Capex
------------------------------------------------------------------------------------------------------------------------
500TENANTI Tenant Improvements o
------------------------------------------------------------------------------------------------------------------------
510CAPEX Capital Expenditures o o o o
------------------------------------------------------------------------------------------------------------------------
520EXCAPEX Extraordinary Capital Expenditures o o o o
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Data Types
------------------------------------------------------------------------------------------------------------------------------------
YTD Current Year - Year to Date
------------------------------------------------------------------------------------------------------------------------------------
AN Annual (prior 12 months' data...fiscal year - audited)
------------------------------------------------------------------------------------------------------------------------------------
TR Trailing 12 months' data
------------------------------------------------------------------------------------------------------------------------------------
UB Underwriting Base Line
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Statement Types
------------------------------------------------------------------------------------------------------------------------------------
BOR Borrower's Statement (as submitted)
------------------------------------------------------------------------------------------------------------------------------------
ADJ Adjustments to Borrower's Statement
------------------------------------------------------------------------------------------------------------------------------------
NOR Normalized Statement (to CMSA format)
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
E-13-2
<PAGE>
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1, Class ______ Certificates [having an initial
aggregate Certificate Principal Balance as of June 27, 2000 (the "Closing
Date") of $[__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 1, 2000 among DLJ Commercial Mortgage Corp., as
Depositor, Midland Loan Services, Inc., as Master Servicer, GMAC Commercial
Mortgage Corporation, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in
F-1A-1
<PAGE>
the case of any of the acts described in clauses (a) through (e) hereof) would
constitute a distribution of the Transferred Certificates under the Securities
Act of 1933, as amended (the "Securities Act"), or would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities laws, or would require registration or qualification of
the Transferred Certificates pursuant to the Securities Act or any state
securities laws.
3. The Transferor and any person acting on behalf of the Transferor in this
matter reasonably believe that the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act (a "Qualified Institutional Buyer") purchasing for its own account or for
the account of another person that is itself a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter has
relied upon the following method(s) of establishing the Transferee's ownership
and discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser; or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local
governmental agency or self-regulatory organization, or with a foreign
governmental agency or self-regulatory organization, which information
is as of a date within 16 months preceding the date of sale of the
Transferred Certificates in the case of a U.S. purchaser and within 18
months preceding such date of sale in the case of a foreign purchaser;
or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date within
16 months preceding the date of sale of the Transferred Certificates
in the case of a U.S. purchaser and within 18 months preceding such
date of sale in the case of a foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the
Transferee, specifying the amount of securities owned and invested on
a discretionary basis by the Transferee as of a specific date on or
since the close of the Transferee's most recent fiscal year, or, in
the case of a Transferee that is a member of a "family of investment
companies", as that term is defined in Rule 144A, a certification by
an executive officer of the investment adviser specifying the amount
of securities owned by the "family of investment companies" as of a
specific date on or since the close of the Transferee's most recent
fiscal year.
___ (e) Other. (Please specify brief description of method)
__________________________________________________________________
__________________________________________________________________
_________________________________________________________________.
F-1A-2
<PAGE>
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with such entity; securities that
are part of an unsold allotment to or subscription by such entity, if such
entity is a dealer; securities of issuers that are part of such entity's
"family of investment companies", if such entity is a registered investment
company; bank deposit notes and certificates of deposit; loan
participations; repurchase agreements; securities owned but subject to a
repurchase agreement; and currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities may be valued at market; and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be included if
the investments of such subsidiaries are managed under the direction of the
entity, except that, unless the entity is a reporting company under Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended, securities
owned by such subsidiaries may not be included if the entity itself is a
majority-owned subsidiary that would be included in the consolidated
financial statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or caused
to be furnished, to the Transferee all information regarding (a) the Depositor,
(b) the Transferred Certificates and distributions thereon, (c) the nature,
performance and servicing of the Mortgage Loans, (d) the Pooling and Servicing
Agreement, and (e) all related matters, that the Transferee has requested.
Very truly yours,
___________________________________
(Transferor)
By:__________________________
Name:________________________
Title:_______________________
F-1A-3
<PAGE>
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1, Class ______ Certificates [having an initial
aggregate Certificate Principal Balance as of June 27, 2000 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates, (the "Transferred Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 1, 2000, among DLJ Commercial Mortgage Corp., as
Depositor, Midland Loan Services, Inc., as Master Servicer, GMAC Commercial
Mortgage Corporation, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to
F-1B-1
<PAGE>
any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other manner,
or (e) taken any other action with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security, which (in
the case of any of the acts described in clauses (a) through (e) hereof) would
constitute a distribution of the Transferred Certificates under the Securities
Act of 1933, as amended (the "Securities Act"), would render the disposition of
the Transferred Certificates a violation of Section 5 of the Securities Act or
any state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
___________________________________
(Transferor)
By:__________________________
Name:________________________
Title:_______________________
F-1B-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1, Class ______ Certificates [having an initial
aggregate Certificate Principal Balance as of June 27, 2000 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the captioned Certificates (the "Transferred Certificates") pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 1, 2000 among DLJ Commercial Mortgage Corp., as
Depositor, Midland Loan Services, Inc., as Master Servicer, GMAC Commercial
Mortgage Corporation, as Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee. All capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
F-2A-1
<PAGE>
2. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
___________________________________
(Transferee)
By:__________________________
Name:________________________
Title:_______________________
F-2A-2
<PAGE>
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
___________________________________
(Nominee)
By:________________________________
Name:______________________________
Title:_____________________________
F-2A-3
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee [each of the Transferee's equity owners] owned and/or
invested on a discretionary basis $______________________(1) in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the case
of a U.S. bank, and not more than 18 months preceding such date of
sale in the case of a foreign bank or equivalent institution.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a state or federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b)
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2A-4
<PAGE>
has an audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is attached
hereto, as of a date not more than 16 months preceding the date of
sale of the Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such date of
sale in the case of a foreign savings and loan association or
equivalent institution.
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB SUBSIDIARY. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ OTHER. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published,
F-2A-5
<PAGE>
in which case the securities were valued at market. Further, in determining such
aggregate amount, the Transferee may have included securities owned by
subsidiaries of such Person, but only if such subsidiaries are consolidated with
such Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under such Person's direction. However, such securities were not
included if such Person is a majority-owned, consolidated subsidiary of another
enterprise and such Person is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee
By: __________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
F-2A-6
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
F-2A-7
<PAGE>
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:________________________________
Name:______________________________
Title:_____________________________
IF AN ADVISER:
Print Name of Transferee
Date:___________________
F-2A-8
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1, Class ___ Certificates [having an initial
aggregate Certificate Principal Balance as of June 27, 2000 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates") pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 2000 among DLJ
Commercial Mortgage Corp., as Depositor, Midland Loan Services, Inc., as Master
Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer, and Norwest
Bank Minnesota, National Association, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in connection with
any distribution thereof, in whole or in part, in any manner which would violate
the Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates, and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has
F-2B-1
<PAGE>
received (A) a certificate from the prospective transferor substantially in the
form attached as Exhibit F-1A to the Pooling and Servicing Agreement; (B) a
certificate from the prospective transferor substantially in the form attached
as Exhibit F-1B to the Pooling and Servicing Agreement and a certificate from
the prospective transferee substantially in the form attached either as Exhibit
F-2A or as Exhibit F-2B to the Pooling and Servicing Agreement; or (C) an
Opinion of Counsel satisfactory to the Certificate Registrar that the transfer
may be made without registration under the Securities Act, together with the
written certification(s) as to the facts surrounding the transfer from the
prospective transferor and/or prospective transferee upon which such Opinion of
Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT").
ACCORDINGLY, THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT TO (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING
OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER
THE SECURITIES
F-2B-2
<PAGE>
ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS CONSTITUTE ENTITIES
DESCRIBED IN SUCH PARAGRAPHS.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
By:_________________________
(Transferee)
Name:
Title:
F-2B-3
<PAGE>
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
---------------------------
(Nominee)
By:________________________
Name:
Title:
F-2B-4
<PAGE>
EXHIBIT F-3A
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHT
[Date]
DLJ Commercial Mortgage Corp.
277 Park Avenue, 9th Floor
New York, New York 10172
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of June 1, 2000 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc. as master servicer, GMAC Commercial Mortgage Corporation as
special servicer, and Norwest Bank Minnesota, National Association as trustee.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Depositor, that:
1. The Transferor is the lawful owner of the Excess Servicing Rights,
with the full right to transfer the Excess Servicing Fee Right free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the Excess
Servicing Fee Right, any interest in the Excess Servicing Fee Right or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of the Excess
Servicing Fee Right, any interest in the Excess Servicing Fee Right or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to the Excess Servicing Fee Right,
any interest in the Excess Servicing Fee Right or any other similar
security with any person in any manner, (d) made any general solicitation
with respect to the Excess Servicing Fee Right, any interest in the Excess
Servicing Fee Right or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action, which
(in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution of the Excess Servicing Fee Right
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of the Excess Servicing Fee Right a violation
of Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of the Excess Servicing Fee Right
pursuant to the Securities Act or any state securities laws.
F-3A-1
<PAGE>
Very truly yours,
-----------------------------
(Transferor)
By: _________________________
Name:________________________
Title:_______________________
F-3A-2
<PAGE>
EXHIBIT F-3B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHT
[Date]
[DEPOSITOR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the Excess Servicing Fee Right established pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 2000 (the "Pooling and
Servicing Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the
"Depositor"), Midland Loan Services, Inc. as master servicer, GMAC Commercial
Mortgage Corporation as special servicer, and Norwest Bank Minnesota, National
Association as trustee. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor, that:
1. The Transferee is acquiring the Excess Servicing Fee Right for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Excess Servicing Fee Right has
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Excess Servicing Fee
Right, and (c) the Excess Servicing Fee Right may not be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Depositor has received: (A) a certificate from the
prospective transferor substantially in the form attached as Exhibit F-3A to the
Pooling and Servicing Agreement; and (B) a certificate from the prospective
transferee substantially in the form attached as Exhibit F-3B to the Pooling and
Servicing Agreement.
3. The Transferee understands that it may not sell or otherwise transfer
the Excess Servicing Fee Right or any interest therein except in compliance with
the provisions of Section 3.11 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
F-3B-1
<PAGE>
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with respect to
the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right
or any other similar security with any person in any manner, (d) made any
general solicitation with respect to the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security by
means of general advertising or in any other manner, or (e) taken any other
action with respect to the Excess Servicing Fee Right, any interest in the
Excess Servicing Fee Right or any other similar security, which (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Excess Servicing Fee Right under the Securities Act, would
render the disposition of the Excess Servicing Fee Right a violation of Section
5 of the Securities Act or any state securities law or would require
registration or qualification of the Excess Servicing Fee Right pursuant
thereto. The Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to the Excess Servicing Fee Right, any interest in the Excess Servicing
Fee Right or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Excess Servicing Fee Right and payments thereon, (c) the
Pooling and Servicing Agreement and the Trust Fund created pursuant thereto, (d)
the nature, performance and servicing of the Mortgage Loans, and (e) all related
matters, that it has requested.
6. The Transferee is (a) a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act or (b) an "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Excess Servicing Fee Right; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such investment and can afford a complete loss of such investment.
7. The Transferee agrees (i) to keep all information relating to the Trust
and the Trust Fund, and made available to it by the Master Servicer,
confidential, (ii) not to use or disclose such information in any manner which
could result in a violation of any provision of the Securities Act or would
require registration of the Excess Servicing Fee Right or any Certificate
pursuant to the Securities Act, and (iii) not to disclose such information, and
to cause its officers, directors, partners employees, agents or representatives
not to disclose such information, in any manner whatsoever, in whole or in part,
to any other Person other than such holder's auditors, legal counsel and
regulators, except to the extent such disclosure is required by law, court order
or other legal requirement or to the extent such information is of public
knowledge at the time of disclosure by such holder or has become generally
available to the public other than as a result of disclosure by such holder;
provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing
such prospective acquisition and (y) agrees in writing to keep such information
confidential, not to use or disclose such information in any manner which could
result in a violation of any provision of the
F-3B-2
<PAGE>
Securities Act or would require registration of the Excess Servicing Fee Right
or any Certificates pursuant to the Securities Act and not to disclose such
information, and to cause its officers, directors, partners, employees, agents
or representatives not to disclose such information, in any manner whatsoever,
in whole or in part, to any other Person other than such Persons' auditors,
legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess Servicing Fee
Right shall not have any rights under the Pooling and Servicing Agreement except
as set forth in Section 3.11(a) of the Pooling and Servicing Agreement, and that
the Excess Servicing Fee Rate may be reduced to the extent provided in the
Pooling and Servicing Agreement.
Very truly yours,
-----------------------------------
(Transferee)
By: ______________________________
Name:______________________________
Title: ___________________________
F-3B-3
<PAGE>
EXHIBIT G
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(DEFINITIVE SUBORDINATED CERTIFICATES)
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1, Class ______ Certificates [having an initial
Certificate Principal Balance as of June 27, 2000 (the "Closing Date") of
$________] [evidencing a ------------- _____% Percentage Interest in the
related Class] (the "Transferred Certificates") ------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of June 1,
2000 among DLJ Commercial Mortgage Corp., as Depositor, Midland Loan Services,
Inc., as Master Servicer, GMAC Commercial Mortgage Corporation, as Special
Servicer, and Norwest Bank Minnesota, National Association, as Trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee benefit
plan or arrangement, including an individual retirement account or annuity,
a Keogh plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including an insurance
company general account, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), nor (B) a Person who is directly or indirectly
purchasing the Transferred Certificates on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or
G-1
<PAGE>
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, however, the purchase and holding of
such Certificates by such Person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under
Sections I and III of Prohibited Transaction Class Exemption 95-60.
Very truly yours,
By: ________________________
(Transferee)
Name:
Title:
G-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2000-CF1, Class R,
evidencing a __% Percentage Interest in such Class (the "Residual Interest
Certificates")), a _________________ duly organized and validly existing under
the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Interest Certificates were issued (the "Pooling
and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
Permitted Transferee and will endeavor to remain a Permitted Transferee for so
long as it holds the Residual Interest Certificates, and (ii) is acquiring the
Residual Interest Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "Disqualified Organization" or a "non-United States Person", but in
addition, if such Person is classified as a partnership under the Code, such
Person can only be a "Permitted Transferee" if all of its beneficial owners are
United States Persons. For this purpose, a "Disqualified Organization" means the
United States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income. A "non-United States Person" is any Person other than a "United
States Person". A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or a
trust as to which (i) a court in the United States is able to exercise primary
supervision over the administration of the trust and (ii) one or more United
States fiduciaries have the right to control all substantial decisions of the
trust or, to the extent provided in the Treasury regulations, a trust if it was
in existence on August 20, 1996 and if elected to be treated as a United States
Person.
H-1-1
<PAGE>
3. The Transferee is aware (i) of the tax that would be imposed under the
Code on transfers of the Residual Interest Certificates to non-Permitted
Transferees; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Interest
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Interest Certificates if at any time during the taxable
year of the pass-through entity a non-Permitted Transferee is the record holder
of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Interest Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false. In addition,
the Transferee is aware the Certificate Registrar will not register any transfer
of the Residual Interest Certificates to an entity classified as a partnership
under the Code unless at the time of transfer, all of the beneficial owners of
such entity are "United States Persons".
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Interest Certificates will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Interest Certificates (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificates to a Person other than the Transferee and clause (ii)(B)
of Section 5.02(d) which authorizes the Trustee to negotiate a mandatory sale of
the Residual Interest Certificates, in either case, in the event that the
Transferee holds such Residual Interest Certificates in violation of Section
5.02(d)); and the Transferee expressly agrees to be bound by and to comply with
such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Interest Certificates is or will be to impede the assessment or
collection of any tax.
H-1-2
<PAGE>
10. The Transferee represents to and for the benefit of the transferor that
the Transferee has historically paid its debts as they become due and intends
and has the ability to pay its debts as they become due in the future.
11. either [The Transferee will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit H-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Class R Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.] or [To the extent that the
Transferee has asserted that it regularly borrows, in the ordinary course of its
trade or business, substantial funds from unrelated third parties at a lower
interest rate than the applicable Federal rate as of the date hereof prescribed
by section 1274(d) of the Internal Revenue code of 1986, the transactions in
which the Transferee has borrowed such funds, the interest rate or rates charged
by the unrelated third party lenders, the date or dates of such transactions,
and the maturity dates or, in the case of adjustable rate debt instruments, the
relevant adjustment dates or periods, with respect to such borrowings are
accurately stated in Exhibit A to this letter.]
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ______ day of ______________.
[NAME OF TRANSFEREE]
By:_________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_____________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the 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 __________________,
________.
_____________________
NOTARY PUBLIC
COUNTY OF____________
STATE OF_____________
My Commission expires the _________ day of ___________, 20__.
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
MAC # N9303-121
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1, Class R Certificates, evidencing a ____%
Percentage Interest in such Class (the "Residual Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Residual Interest Certificates, pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2000 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp. as Depositor, Midland Loan Services, Inc. as
Master Servicer, GMAC Commercial Mortgage Corporation as Special Servicer, and
Norwest Bank Minnesota, National Association as Trustee. All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferor hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Interest Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee (or the beneficial
owners of the Transferee if the Transferee is classified as a partnership under
the Code) as contemplated by Treasury regulation
H-2-1
<PAGE>
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor
has determined that the Transferee has historically paid its debts as they
became due and has found no significant evidence to indicate that the Transferee
will not continue to pay its debts as they become due in the future. The
Transferor understands that the transfer of the Residual Interest Certificates
may not be respected for United States income tax purposes (and the Transferor
may continue to be liable for United States income taxes associated therewith)
unless the Transferor has conducted such an investigation.
Very truly yours,
By:_________________________
(Transferor)
Name:
Title:
H-2-2
<PAGE>
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Standard & Poor's Ratings Services
a division of The McGraw-Hill Companies, Inc.
55 Water Street, 41st Floor
New York, NY 10041
Attention: __________________
Fitch, Inc.
One State Street Plaza, 31st Floor
New York, NY 10004
Attention: __________________
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the Pooling and
Servicing Agreement, dated as of June 1, 2000 (the "Agreement") among DLJ
Commercial Mortgage Corp. as Depositor, Midland Loan Services, Inc. as Master
Servicer, GMAC Commercial Mortgage Corporation as Special Servicer and the
undersigned as Trustee and relating to DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 2000-CF1 (the "Certificates").
Capitalized terms used but not otherwise defined herein shall have respective
meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________________ to serve as the Special Servicer under the Agreement.
The designation of ____________________________ as Special Servicer will
become final if certain conditions are met and each Rating Agency delivers to
Norwest Bank Minnesota, National Association, the trustee under the Agreement
(the "Trustee"), written confirmation that if the person designated to become
the Special Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
I-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
--------------------------
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES,
A DIVISION OF THE MCGRAW-HILL COMPANIES, INC.
By:__________________________________
Name:
Title:
Date:
FITCH, INC.
By:__________________________________
Name:
Title:
Date:
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[SPECIAL SERVICER]
[DEPOSITOR]
Re: DLJ Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing Agreement, dated as
of June 1, 2000, relating to DLJ Commercial Mortgage Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-CF1 (the "Agreement"), the undersigned
hereby agrees with all the other parties to the Agreement that the undersigned
shall serve as Special Servicer under, and as defined in, the Agreement. The
undersigned hereby acknowledges and agrees that, as of the date hereof, it is
and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 2.06 of the Agreement, with the following corrections with respect to
type of entity and jurisdiction of organization: ____________________.
_______________________________
By:____________________________
Name:
Title:
I-2-1
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
DLJ Commercial Mortgage Corp.
277 Park Avenue
New York, NY 10172
SECURED PARTY:
Norwest Bank Minnesota, National Association*
as Trustee for the registered holders of
DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
45 Broadway, 12th Floor
New York, New York 10006
TEXT:
See Exhibit I Attached Hereto
----------
* Notices to the Secured Party should be sent to 11000 Broken Land Parkway,
Columbia, Maryland 21044-3562, Attention: Corporate Trust Administration
(CMBS) - DLJ Commercial Mortgage Corp., Series 2000-CF1.
J-1
<PAGE>
EXHIBIT I TO EXHIBIT J
This Exhibit I is attached to and incorporated in a financing statement
pertaining to DLJ Commercial Mortgage Corp. as depositor (referred to as the
"Debtor" for the purpose of this financing statement only), and Norwest Bank
Minnesota, National Association as trustee for the holders of the Series
2000-CF1 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of June 1, 2000 (the "Pooling and Servicing Agreement"), among the
Debtor as depositor, the Secured Party as trustee, Midland Loan Services, Inc.
as master servicer (in such capacity, the "Master Servicer") and GMAC Commercial
Mortgage Corporation as special servicer (in such capacity, the "Special
Servicer"), relating to the issuance of the Debtor's Commercial Mortgage
Pass-Through Certificates, Series 2000-CF1 (collectively, the "Series 2000-CF1
Certificates"). Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement. The
attached financing statement covers all of the Debtor's right (including the
power to convey title thereto), title and interest in and to the Trust Fund
created pursuant to the Pooling and Servicing Agreement, consisting of the
following:
1. The mortgage notes or other evidence of indebtedness of a borrower
(the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Schedule of Mortgage Loans to the
Pooling and Servicing Agreement, which Schedule of Mortgage Loans is
attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar instruments
securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage Note and
Mortgage (collectively, with such related Mortgage Note and Mortgage,
the "Mortgage Loan Documents");
4. (a) the Recording/Filing Reserve Funds held by the Trustee pursuant to
the Pooling and Servicing Agreement, (b) the investments of any such
funds consisting of securities, instruments or other obligations, and
(c) the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
5. (a) the Collection Account maintained by the Master Servicer pursuant
to the Pooling and Servicing Agreement, (b) all funds from time to
time on deposit in the Collection Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations,
and (d) the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
J-2
<PAGE>
6. All REO Property;
7. (a) the REO Account required to be maintained by the Special Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations,
and (d) the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
8. (a) the Servicing Account(s) and Reserve Account(s) required to be
maintained by the Master Servicer or Special Servicer pursuant to the
Pooling and Servicing Agreement, and (b) all funds from time to time
on deposit in the Servicing Account(s) and Reserve Account(s);
9. (a) the Distribution Account required to be maintained by the Secured
Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
10. The Mortgage Loan Purchase Agreement and all rights of the Debtor
thereunder.
11. All insurance policies, including the right to payments thereunder,
with respect to the Mortgage Loans required to be maintained pursuant
to the Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be serviced by the Master
Servicer or Special Servicer; and
12. All income, payments, products and proceeds of any of the foregoing,
together with any additions thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL
J-3
<PAGE>
CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING
STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO
PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND
INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM
OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT
LIMITATION, ANY PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS
FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
J-4
<PAGE>
EXHIBIT A
---------
SCHEDULE OF MORTGAGE LOANS
[See Attached Schedule]
J-5
<PAGE>
<TABLE>
<CAPTION>
# Property Name Address
- ------------- -------
<S> <C> <C>
1 Connecticut Financial Center 157 Church Street
2 Presidio Apartments 2000 Walnut Avenue
3 77 Water Street 77 Water Street
4 777 3rd Avenue 777 3rd Avenue
5 Baldwin Commons 4806-4868 Baldwin Road
6 San Mateo Plaza 1850 Gateway Drive
7 Glendale Marketplace 140 South Brand Boulevard
8 Flagship Phase 1
8a Regional Place Apartments 3037 Mustang Drive
8b Ashton Park Apartments 2403 Pioneer Parkway
8c Meadowbrook Apartments 515 Bender Avenue
8d Parkside Apartments 8455 Will Clayton Parkway
8e Ashwood Park Apartments 3520 Burke Road
9 Sonora Village Shopping Center 15640 North Pima Road
10 West Covina Village Shopping Center 301-477 North Azusa Avenue
11 Boulder Park Apartments 24 Kessler Farm Drive
12 One Congress Center 401 South State Street and
418 South Wabash Avenue
13 Royal Coachman Resort (1A) 1070 Laurel Road East
14 Paradise Park Resort (1A) 1201 North Expressway 77
15 Vacation Village Travel Resort (1A) 6900 Ulmerton Road
16 Alliance CH F3
16a Sage Hollow Apartments 10700 Fuqua Street
16b The Gardens Apartments 1660 West T.C. Jester Boulevard
16c Elm Creek Apartments 2911 Sycamore Springs Drive
17 Village of the Four Seasons Mobile Home Park (1B) 200 Ford Road
18 Parque La Quinta Mobile Home Park (1B) 305 South Willow Avenue
19 Las Palmas Mobile Home Park (1B) 1025 South Riverside Avenue
20 North Mathilda Office Center 755 North Mathilda Avenue and 680 Vaqueros Avenue
21 Gateway Plaza 950 North Meridian Street
22 Mansion House 300 North Fourth Street
23 Paradyne Corporation 8545 126th Avenue North
24 Alliance CH F1
24a The Place at Green Trails Apartments 1111 Houghton Road
24b The Harbour Apartments 4040 Crow Road
25 Christmas Tree Shop Plaza & Staples Plaza 15 and 20 Stockwell Drive
26 Savannah Grand Apartments 3207 Rosebud Lane
27 University Avenue Park 26 Dartmouth Street
28 Holiday Inn Select 111 Route 173
29 Klahanie Village Shopping Center 4560 Klahanie Drive SE
30 Alliance CH F4
30a Tanglebrook Apartments 1430 Fountainview
30b Steeplechase Apartments 2400 Loop 35
31 Brookfield III Office Building 31700 Middlebelt Road
32 Birch Street Promenade 110, 260, and 330 Birch Street
33 Tops Plaza Shopping Center 1381 East Ridge Road
34 The Market Shopping Center 8915 Market Place Northeast
35 Dyncorp Building 6101 Stevenson Avenue
36 Maroa Park Apartments 501 West Sierra Avenue
37 Belleview Plaza Shopping Center 7070 Aaron Aronov Drive
38 Perimeter Square West 1165 Perimeter Center West
39 Ramsgate Apartments 1407 Bernard Street
40 Norwood Center 4211-4251 Norwood Avenue
41 Alliance CH F2
41a Deerbrook Forest Apartments 17750 Highway 59 North
41b Chalfonte Apartments 1715 Enclave Parkway
42 The 495 Technology Center 153 Northboro Road
43 The Village Shopping Center 19301, 19307 & 19361 Saticoy Street
44 Blue Ridge Office Building 639 Granite Street
45 Sundance Apartments 1670 Murray Boulevard
46 The Park 600 Park Drive
47 Stevenson Ranch Plaza Phase II 24955-24991 Pico Canyon Road
48 Woodward Pavilion Shopping Center 8805-8971 North Cedar Avenue
49 Decatur Twain Shopping Center 3650 South Decatur Boulevard
50 Walnut Hills Plaza 18718-18750 Amar Road
51 Maple Leaf Apartments 7106-7120 Broadway
52 Colerain Towers 5464 Bahama Terrace
53 Sierra Mobile Estates 17225 & 17333 Valley Boulevard
54 Spring Street Business Park 3156-3160 Spring Street
55 123-125 Broad Street 123-125 Broad Street
56 Galleria at the Renaissance 1405-1409 Renaissance Boulevard
57 Canterbury Apartments 3400 Northwest 29th Street
58 Chester Commons 1120 Chester Avenue
59 Winsor Office Plaza 1935 West County Road B-2
60 Foxhaven Apartments 7275 Hickory Street
61 The Residential Resort 8 and 11 Turtle Creek Lane
62 Alvarado Place Apartments 1475 South Alvarado Drive
63 Sherman Grove 627 Grove Street and
1549-1571 Sherman Avenue
64 Aztec Square Shopping Center 4823 Highway 95
65 Renzi Portfolio
65a Lithuanian Hall 924-32 East Moyamensing Avenue
65b Stable Court 213 Fitzwater Street
65c Gaskill Court 337 Gaskill Street
66 Selma Square Shopping Center Phase II 2775 and 2851 South Highland Avenue
67 Stonewood Village Retail Center 5976 Memorial Drive
68 Fiesta Plaza 6711 Mullins Street
69 Pecan Valley Manufactured Housing Community 6507 Barksdale Boulevard
70 The Colonial Woods Apartments 6333 Windswept Lane
71 Pikesville Plaza 600 Reistertown Road
72 Autumn Brook Apartments 301 Autumn Brook Terrace
73 Ladley Building 500 South Arthur Avenue
74 Monaco Village Shopping Center 2200 South Monaco Parkway
75 Westminster Townhouse Apartments 600 Redmond Road
76 Bentley Place Apartments 2828 North Pine Hills Road
77 King Louis XIV Apartments 3121 Johnston Street
78 Cornerstone Chase Apartments 3120-3152 Valley Meadow Drive
79 Oakwood Manor Condominium Apartments 4800 Oakwood Drive
80 Pamida Hometown Values 174 James Robertson Drive
81 Stahl Plaza 158 Mountain View Boulevard
82 Melrose Center Shops 2615 Franklin Pike
83 Autumn Chase / Whisper Cove Apartments 8600 Research Boulevard
84 Triangle Plaza Shopping Center 18030 Triangle Shopping Plaza
85 La Hacienda Apartments 6100 Glenmont Drive
86 Bel Air Center 1200 Cirbyway and
1079 Sunrise Avenue
87 Southwood Court Townhouses 24 State Street
88 1045 Sheridan Street 1045 Sheridan Street
89 Coit Village Shopping Center 6832 Coit Road
90 Broadway Square 120 South White Horse Pike
91 Oak Hill Manor Apartments 7314 Oak Manor Drive
92 Bayou Rouge Apartments 7110 East Kings Highway
93 Franklin Square Apartments - Syracuse 460 North Franklin Square
94 The Villages of Inwood Apartments 5710-5732 West Mount Houston Road
95 Laurel Tree Apartments 17923 Arrow Boulevard
96 Liberty Ridge Apartments 6222 Loop 410 Northwest
97 Twelve Oaks Apartments 105 Gattis School Road
98 Catalina Apartments 7733 South Shore Drive
99 Hickory Hill Apartments 276 Stewart's Ferry Pike
100 Washington Square and Lincoln Estates Apartments 511 Washington Avenue &
711 East 7th Street
101 Ruse De Ville Apartments 7650 Clarewood Drive
102 Park Place Shopping Center 801-821 East Capitol Drive
103 75 Midvale Road 75 Midvale Road
104 Quail Creek Arms Apartments 9133 Northgate Boulevard
105 Hampton Courts Apartments 26111 Pinehurst Street
106 Williamsburg Apartments 3105 Edenborn Avenue
107 Winward II Apartments 4288-4292 Chaha Road
108 Carriage Hill Apartments 473 Whalley Avenue
109 Brookview Commons 4261 West 20th Street
110 Southview and Westview Apartments 2505 West Violet Street & 4827 Melton Lane
111 Creek Bend Apartments 1013 East Interstate 30
112 The Willows Townhomes 3712 Coral Springs Drive
113 Stuyvesant Avenue Apartments 818 Stuyvesant Avenue
114 National Mobile Home Park 5311 East Archer Street
115 Hollywood Video Store 11602 South Memorial Parkway
116 Lakeview Apartments 100 Lakeview Boulevard
117 16 and 18-20 Taylor Avenue Apartments 16 and 18-20 Taylor Avenue
118 Granite Court 431-433 West Gay Street
119 Timberlakes Apartments 1041 East Interstate Highway 30
120 Garden Creek Apartments 1033, 1037, & 1041 East Interstate 30
121 Royal Court Apartments 2031 North Prairie Avenue
122 Ponderosa Village Mobile Home Park 2027 Read Street
123 Allen Place & Greenwood Apartments 46 Allen Place & 17 Greenwood Street
124 Averil Way Apartments 6143 Averill Way
125 Cheverly 12 Warehouse 4801-4823 Lydell Road
126 1055 Clarkson Apartments 1055 Clarkson Street
127 Circle Apartments 1527 South Austin Street
128 Windswept Apartments 2703-2707 Windswept Cove
(1A) The underlying mortgage loans secured by royal coachman resort, paradise
park resort and vacation village travel resort are cross-collateralized and
cross-defaulted, respectively.
(1B) The underlying mortgage loans secured by village of the four seasons mobile
home park, parque la quinta mobile home park and las palmas mobile home
park are cross-collateralized and cross-defaulted, respectively.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Mortgage Original
Zip Loan Loan Cut-off Monthly
# City County State Code Seller Balance Balance Payment
- ---- ------ ----- ---- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 New Haven New Haven CT 06511 Column $56,000,000 $55,941,966 $422,679.35
2 Fremont Alameda CA 94538 Column 49,000,000 48,944,982 359,718.87
3 New York New York NY 10005 Column 41,500,000 41,500,000 329,151.88
4 New York New York NY 10017 Column 40,000,000 40,000,000 311,542.89
5 Orion Oakland MI 48359 Column 38,000,000 37,984,176 284,146.69
6 San Mateo San Mateo CA 94404 Column 36,500,000 36,409,504 268,333.14
7 Glendale Los Angeles CA 91205 Column 32,000,000 31,809,442 232,133.27
8 Column 29,550,000 29,522,973 232,258.95
8a Grapevine Tarrant TX 76051
8b Grand Prairie Tarrant TX 75051
8c Humble Harris TX 77338
8d Humble Harris TX 77338
8e Pasadena Harris TX 77504
9 Scottsdale Maricopa AZ 85260 Column 28,700,000 28,700,000 203,395.31
10 West Covina Los Angeles CA 91791 Column 26,500,000 26,489,591 200,951.68
11 Nashua Hillsborough NH 03063 Column 24,760,000 24,733,770 185,491.67
12 Chicago Cook IL 60605 Column 24,300,000 24,291,348 188,398.12
13 Nokomis Sarasota FL 34275 Union Capital 13,175,000 13,170,229 101,771.58
14 Harlingen Cameron TX 78552 Union Capital 4,725,000 4,723,289 36,498.73
15 Largo Pinellas FL 33771 Union Capital 2,200,000 2,199,203 16,994.12
16 Column 18,417,890 18,369,957 141,487.14
16a Houston Harris TX 77089
16b Houston Harris TX 77008
16c Houston Harris TX 77339
17 San Jose Santa Clara CA 95138 Union Capital 11,130,000 11,130,000 84,724.03
18 Rialto San Bernardino CA 92376 Union Capital 3,700,000 3,700,000 28,165.22
19 Rialto San Bernardino CA 92376 Union Capital 2,800,000 2,800,000 21,314.22
20 Sunnyvale Santa Clara CA 94086 Column 17,625,000 17,575,799 132,039.21
21 Indianapolis Marion IN 46204 Column 17,500,000 17,456,115 136,175.46
22 St. Louis St. Louis City MO 63102 Column 17,250,000 17,199,049 133,004.51
23 Largo Pinellas FL 33773 Column 16,000,000 15,993,640 120,990.93
24 Column 14,231,889 14,194,850 109,330.07
24a Houston Harris TX 77450
24b Beaumont Jefferson TX 77706
25 Avon Norfolk MA 02322 Column 12,000,000 12,000,000 89,393.87
26 Winter Park Orange FL 32792 Column 11,500,000 11,487,035 84,302.77
27 Westwood Norfolk MA 02090 Column 10,000,000 9,996,119 76,042.52
28 Clinton Hunterdon NJ 08809 Column 9,750,000 9,675,107 79,894.21
29 Issaquah King WA 98029 Column 9,600,000 9,596,436 73,747.67
30 Column 9,403,577 9,379,104 72,238.74
30a Houston Harris TX 77057
30b Alvin Brazoria TX 77511
31 Farmington Hills Oakland MI 48334 Column 8,900,000 8,875,536 67,050.52
32 Brea Orange CA 92821 Column 8,845,000 8,817,752 67,259.61
33 Irondequoit Monroe NY 14609 Column 8,700,000 8,666,173 65,176.80
34 Lake Stevens Snohomish WA 98205 Column 8,400,000 8,396,515 62,870.34
35 Alexandria Alexandria City VA 22304 Column 8,200,000 8,188,207 61,950.08
36 Fresno Fresno CA 93704 Column 8,150,000 8,127,366 61,170.94
37 Fairfield Jefferson AL 35064 Column 8,000,000 7,989,537 62,137.82
38 Atlanta Dekalb GA 30338 Column 7,860,000 7,860,000 58,608.09
39 Denton Denton TX 76201 Column 7,100,000 7,100,000 56,502.83
40 Sacramento Sacramento CA 95838 Column 7,050,000 7,030,471 52,964.30
41 Column 6,946,644 6,928,565 53,364.46
41a Humble Harris TX 77396
41b Houston Harris TX 77077
42 Southborough Worcester MA 01772 Column 6,800,000 6,797,244 51,181.77
43 Reseda Los Angeles CA 91335 Column 6,100,000 6,100,000 46,213.79
44 Braintree Norfolk MA 02184 Column 5,860,000 5,857,503 43,571.89
45 Colorado Springs El Paso CO 80915 Column 5,300,000 5,295,864 41,787.86
46 Warner Robins Houston GA 31088 Union Capital 5,200,000 5,187,846 41,429.46
47 Stevenson Ranch Los Angeles CA 91381 Column 5,000,000 4,974,952 35,510.15
48 Fresno Fresno CA 93720 Column 4,875,000 4,865,316 39,050.09
49 Las Vegas Clark NV 89103 Column 4,790,000 4,778,052 37,341.36
50 Walnut Los Angeles CA 91789 Column 4,550,000 4,532,675 34,342.70
51 Merrillville Lake IN 46410 Column 4,539,400 4,526,434 33,720.81
52 Cincinnati Hamilton OH 45223 Column 4,100,000 4,075,542 30,571.65
53 Fontana San Bernardino CA 92335 Union Capital 3,800,000 3,790,032 29,111.06
54 Fairfax Fairfax VA 22031 Column 3,700,000 3,698,598 28,292.62
55 Boston Suffolk MA 02110 Column 3,700,000 3,691,241 30,193.40
56 Albuquerque Bernalillo NM 87107 Column 3,600,000 3,598,466 26,767.71
57 Lauderdale Lakes Broward FL 33311 Column 3,600,000 3,591,259 26,692.10
58 Cleveland Cuyahoga OH 44114 Column 3,350,000 3,348,792 25,901.19
59 Roseville Ramsey MN 55113 Column 3,270,000 3,263,294 25,888.76
60 Frisco Collin TX 75034 Column 2,900,000 2,898,915 22,236.86
61 East Hartford Hartford CT 06108 Column 2,800,000 2,789,753 21,430.44
62 Colorado Springs El Paso CO 80910 Column 2,650,000 2,647,906 20,805.46
63 Evanston Cook IL 60201 Column 2,600,000 2,590,034 20,268.80
64 Fort Mohave Mohave AZ 86426 Column 2,350,000 2,343,590 17,753.99
65 Column 2,300,000 2,295,685 18,804.98
65a Philadelphia Philadelphia PA 19147
65b Philadelphia Philadelphia PA 19147
65c Philadelphia Philadelphia PA 19147
66 Selma Fresno CA 93662 Column 2,300,000 2,291,356 17,441.09
67 Stone Mountain Dekalb GA 30083 Column 2,150,000 2,150,000 16,384.79
68 Houston Harris TX 77081 Column 2,125,000 2,121,628 17,629.64
69 Bossier City Bossier LA 71112 Union Capital 2,100,000 2,099,274 16,385.91
70 Houston Harris TX 77057 Column 2,000,000 1,997,840 14,884.96
71 Pikesville Baltimore MD 21208 Column 2,000,000 1,996,951 16,852.46
72 Hueytown Jefferson AL 35023 Column 1,946,700 1,941,335 14,652.29
73 Louisville Boulder CO 80027 Column 1,927,500 1,925,584 14,752.56
74 Denver Denver CO 80222 Column 1,825,000 1,822,675 14,279.15
75 Rome Floyd GA 30165 Column 1,800,000 1,797,833 14,302.26
76 Orlando Orange FL 32808 Column 1,800,000 1,797,232 15,117.86
77 Lafayette Lafayette LA 70503 Column 1,675,000 1,670,525 12,748.95
78 Dallas Dallas TX 75220 Column 1,650,000 1,646,920 13,514.40
79 Odessa Ector TX 79762 Column 1,620,000 1,617,983 12,756.12
80 Gladwin Gladwin MI 48624 Column 1,587,000 1,581,526 12,394.37
81 Wayne Passaic NJ 07470 Column 1,575,000 1,573,972 13,152.69
82 Nashville Davidson TN 37204 Column 1,560,000 1,558,527 12,139.07
83 Austin Travis TX 78758 Column 1,536,000 1,532,199 12,007.01
84 Dumfries Prince William VA 22026 Column 1,500,000 1,498,937 12,210.10
85 Houston Harris TX 77081 Column 1,495,500 1,493,984 11,372.16
86 Roseville Placer CA 95661 Column 1,500,000 1,493,647 12,321.97
87 Biddeford York ME 04005 Column 1,487,000 1,485,539 11,423.21
88 Chicopee Hampden MA 01020 Union Capital 1,480,000 1,474,023 12,399.84
89 Plano Collin TX 75023 Column 1,387,500 1,386,224 10,885.75
90 Hammonton Atlantic NJ 08037 Column 1,360,000 1,356,040 10,534.43
91 San Antonio Bexar TX 78229 Column 1,260,000 1,258,648 10,310.97
92 Shreveport Caddo LA 71115 Column 1,200,000 1,199,615 9,509.05
93 Syracuse Onondaga NY 13204 Column 1,170,000 1,166,515 8,996.29
94 Houston Harris TX 77088 Column 1,150,000 1,148,841 8,761.13
95 Fontana San Bernardino CA 92335 Column 1,150,000 1,148,680 9,253.16
96 San Antonio Bexar TX 78238 Column 1,140,000 1,140,000 9,107.15
97 Round Rock Williamson TX 78664 Column 1,128,000 1,124,349 8,995.10
98 Chicago Cook IL 60649 Column 1,100,000 1,097,852 8,866.68
99 Nashville Davidson TN 37214 Column 1,100,000 1,097,278 8,598.77
100 Monticello Wright MN 55362 Column 1,100,000 1,095,996 8,434.67
101 Houston Harris TX 77036 Column 984,000 981,381 7,839.73
102 Milwaukee Milwaukee WI 53212 Column 980,000 978,243 8,140.46
103 Edison Middlesex NJ 08837 Column 970,000 959,963 8,559.62
104 Austin Travis TX 78758 Column 925,000 923,286 7,596.35
105 Roseville Macomb MI 48066 Column 860,000 857,726 6,570.04
106 Metairie Jefferson LA 70002 Column 855,000 852,718 6,805.83
107 Garland Dallas TX 75043 Column 840,000 839,325 6,861.83
108 New Haven New Haven CT 06411 Column 825,000 823,931 6,425.57
109 Cleveland Cuyahoga OH 44109 Column 807,500 806,521 6,404.58
110 Tampa Hillsborough FL 33614 Column 760,000 760,000 6,545.25
111 Garland Dallas TX 75043 Column 725,000 724,417 5,922.41
112 Coral Springs Broward FL 33065 Column 700,000 699,128 5,511.90
113 Irvington Essex NJ 07111 Column 680,000 679,389 5,373.86
114 Tulsa Tulsa OK 74115 Union Capital 620,000 619,318 5,042.29
115 Huntsville Madison AL 35803 Column 620,000 619,018 5,147.94
116 Glasgow Barren KY 42141 Column 619,000 616,951 4,900.66
117 Norwalk Fairfield CT 06854 Column 610,000 609,786 4,742.35
118 West Chester Chester PA 19380 Column 600,000 598,837 4,849.34
119 Garland Dallas TX 75043 Column 575,000 574,538 4,697.09
120 Garland Dallas TX 75043 Column 570,000 569,542 4,656.24
121 Dallas Dallas TX 75204 Column 560,000 559,014 4,680.21
122 Omaha Douglas NE 68111 Column 510,000 508,762 4,012.17
123 Hartford Hartford CT 06106 Column 500,000 499,303 4,291.76
124 Dallas Dallas TX 75225 Column 500,000 498,802 3,951.37
125 Cheverly Prince George's MD 20781 Column 500,000 498,009 4,213.11
126 Denver Denver CO 80218 Column 465,000 464,560 3,615.07
127 Denison Grayson TX 75020 Column 450,000 448,991 3,633.76
128 Austin Travis TX 78745 Column 388,000 387,652 3,307.90
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Only Interest
Orig Rem. Orig Ram. Prepayment Fee Calculation
Interest Term to Term to Maturity Amort. Amort. Period as of Provision Simple/ (30/360/
# Rate Maturity Maturity Date Term Term (months) Origination Defeasance Leasehold Actual/360)
- -------- -------- -------- -------- ------ ------ -------- ------------------ ---------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 8.30% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Leasehold Actual/360
2 8.01% 120 118 4/1/30 360 358 L (10) Yes Fee Actual/360
3 8.84% 144 144 6/1/12 360 360 L (11.75), O (0.25) Yes Leasehold Actual/360
4 8.64% 120 120 6/1/10 360 360 L (9.75), O (0.25) Yes Leasehold Actual/360
5 8.20% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
6 8.02% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
7 7.88% 120 110 8/1/09 360 350 L (9.5), O (0.5) Yes Fee Actual/360
8 8.74% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Actual/360
8a Fee
8b Fee
8c Fee
8d Fee
8e Fee
9 8.23% 120 114 12/1/09 360 360 24 L (9.5), O (0.5) Yes Fee Actual/360
10 8.35% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
11 8.22% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
12 8.59% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
13 8.55% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
14 8.55% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
15 8.55% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
16 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
16a Fee
16b Fee
16c Fee
17 8.84% 120 117 3/1/10 360 360 12 L (9.5), O (0.5) Yes Fee Actual/360
18 8.84% 120 117 3/1/10 360 360 12 L (9.5), O (0.5) Yes Fee Actual/360
19 8.84% 120 117 3/1/10 360 360 12 L (9.5), O (0.5) Yes Fee Actual/360
20 8.22% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
21 8.63% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
22 8.53% 120 114 12/1/29 360 354 L (9.5), O (0.5) Yes Leasehold Actual/360
23 8.32% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
24 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
24a Fee
24b Fee
25 8.16% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
26 7.99% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
27 8.38% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
28 8.71% 120 111 9/1/09 300 291 L (9.5), O (0.5) Yes Fee Actual/360
29 8.49% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
30 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
30a Fee
30b Fee
31 8.28% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
32 8.38% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
33 8.22% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
34 8.21% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
35 8.31% 120 117 3/1/30 360 357 L (9.5), O (0.5) Yes Fee Actual/360
36 8.24% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
37 8.61% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
38 8.17% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
39 8.36% 120 120 6/1/10 300 300 L (9.5), O (0.5) Yes Fee Actual/360
40 8.25% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
41 8.49% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Actual/360
41a Fee
41b Fee
42 8.27% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
43 8.34% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
44 8.14% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
45 8.25% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
46 8.89% 120 115 1/1/30 360 355 L (9.5), O (0.5) Yes Fee Actual/360
47 7.66% 120 112 10/1/09 360 352 L (9.5), O (0.5) Yes Fee Actual/360
48 8.95% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
49 8.65% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
50 8.30% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
51 8.13% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
52 8.17% 120 109 7/1/09 360 349 L (9.5), O (0.5) Yes Fee Actual/360
53 8.46% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
54 8.44% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
55 8.66% 120 117 3/1/10 300 297 L (9.5), O (0.5) Yes Fee Actual/360
56 8.14% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
57 8.11% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
58 8.56% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
59 8.82% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
60 8.47% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
61 8.45% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
62 8.20% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
63 8.65% 120 112 10/1/09 360 352 L (9.5), O (0.5) Yes Fee Actual/360
64 8.31% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
65 9.18% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Actual/360
65a Fee
65b Fee
65c Fee
66 8.35% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
67 8.85% 120 115 1/1/10 336 336 24 L (9.5), O (0.5) Yes Fee Actual/360
68 8.86% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
69 8.66% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
70 8.15% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
71 9.05% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
72 8.27% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
73 8.45% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
74 8.69% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
75 8.86% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
76 9.01% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
77 8.39% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
78 9.20% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
79 8.76% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
80 8.67% 120 113 5/1/21 360 353 L (9.5), O (0.5) Yes Fee Actual/360
81 8.94% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
82 8.63% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
83 8.68% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
84 8.63% 120 119 5/1/10 300 299 L (9.5), O (0.5) Yes Fee Actual/360
85 8.38% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
86 8.74% 120 115 1/1/10 300 295 L (9.5), O (0.5) Yes Fee Actual/360
87 8.49% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
88 8.98% 120 115 1/1/10 300 295 L (9.5), O (0.5) Yes Fee Actual/360
89 8.72% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
90 8.58% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
91 9.19% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
92 8.83% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
93 8.50% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
94 8.40% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
95 9.00% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
96 8.92% 120 120 6/1/10 360 360 L (9.5), O (0.5) Yes Fee Actual/360
97 8.90% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
98 9.02% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
99 8.68% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
100 8.47% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
101 8.89% 84 78 12/1/06 360 354 L (6.5), O (0.5) Yes Fee Actual/360
102 9.36% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
103 8.73% 120 113 11/1/09 240 233 L (9.5), O (0.5) Yes Fee Actual/360
104 9.23% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
105 8.43% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
106 8.88% 120 114 12/1/09 360 354 L (9.5), O (0.5) Yes Fee Actual/360
107 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
108 8.64% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
109 8.84% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
110 9.32% 120 120 6/1/10 300 300 L (9.5), O (0.5) Yes Fee Actual/360
111 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
112 8.76% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
113 8.80% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
114 9.12% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
115 8.87% 120 118 4/1/10 300 298 L (9.5), O (0.5) Yes Fee Actual/360
116 8.82% 120 113 11/1/09 360 353 L (9.5), O (0.5) Yes Fee Actual/360
117 8.62% 120 119 5/1/10 360 359 L (9.5), O (0.5) Yes Fee Actual/360
118 9.05% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
119 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
120 9.17% 60 58 4/1/05 360 358 L (4.5), O (0.5) Yes Fee Actual/360
121 9.43% 120 116 2/1/10 360 356 L (9.5), O (0.5) Yes Fee Actual/360
122 8.75% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
123 8.35% 120 119 5/1/10 240 239 L (9.5), O (0.5) Yes Fee Actual/360
124 8.80% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
125 9.05% 120 115 1/1/10 300 295 L (9.5), O (0.5) Yes Fee Actual/360
126 8.62% 120 118 4/1/10 360 358 L (9.5), O (0.5) Yes Fee Actual/360
127 9.04% 120 115 1/1/10 360 355 L (9.5), O (0.5) Yes Fee Actual/360
128 9.66% 120 117 3/1/10 360 357 L (9.5), O (0.5) Yes Fee Actual/360
</TABLE>
<PAGE>
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income" shall mean
for each fiscal year or portion thereof, (i) the related Operating Income
allocable to such period, less (ii) the related Operating Expenses allocable to
such period, and less (iii) any Contractual Recurring Replacement Reserve for
such Mortgaged Property as indicated in the Prospectus Supplement dated June 20,
2000 relating to DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1 (the amounts described in this clause (iii) to be
prorated if "Net Operating Income" is being calculated for less than a full
fiscal year).
With respect to any Mortgaged Property "Operating Income" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds. Operating Income shall not include (a)
insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Operating Income but paid directly by any tenant to a
Person other than the Mortgagor except for real estate taxes paid directly to
any taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under space lease which is
the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses" shall mean, for
each fiscal year or portion thereof, all expenses directly attributable to the
operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation, impositions, insurance premiums, management fees, payments
to third party suppliers, and costs attributable to the operation, repair and
maintenance of the systems for heating, ventilating and air conditioning, and
actually paid for by the Mortgagor. Operating Expenses shall not include
interest, principal and premium, if any, due under the Mortgage Note or
otherwise in connection with any other secured indebtedness, income taxes,
extraordinary capital improvements costs, or any non-cash charge or expense such
as depreciation.
K-1
<PAGE>
EXHIBIT L-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Norwest Bank Minnesota, National Association
45 Broadway, 12th Floor
New York, New York 10006
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
In accordance with Section [3.12(d)] [4.02(a)] [8.12(b)] of the Pooling and
Servicing Agreement, dated as of June 1, 2000 (the "Pooling and Servicing
Agreement"), among DLJ Commercial Mortgage Corp. as depositor (the "Depositor"),
Midland Loan Services, Inc., as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, and Norwest Bank Minnesota, National
Association as trustee (the "Trustee"), with respect to the DLJ Commercial
Mortgage Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-CF1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial holder of $___________ aggregate
[Certificate Principal Balance/Certificate Notional Amount] of the
Class ____ Certificates.
2. The undersigned is requesting access to the following information (the
"Information"):
___ The information on the Master Servicer's Internet Website
pursuant to Section 3.12(d) of the Pooling and Servicing
Agreement.
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior
written consent of the Trustee, be 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
L-1-1
<PAGE>
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; and
provided that the undersigned may provide all or any part of the
Information to its auditors, legal counsel and regulators.
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
Non-Registered Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities Act.
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 HOLDER OF A
CERTIFICATE]
By:
----------------------------------
Name:
Title:
Telephone No.:
L-1-2
<PAGE>
EXHIBIT L-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Norwest Bank Minnesota, National Association
45 Broadway, 12th Floor
New York, New York 10006
Attention: Corporate Trust Services (CMBS)
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
In accordance with Section [4.02(a)] [8.12(b)] of the Pooling and Servicing
Agreement, dated as of June 1, 2000 (the "Pooling and Servicing Agreement"),
among DLJ Commercial Mortgage Corp. as depositor (the "Depositor"), Midland Loan
Services, Inc., as master servicer, GMAC Commercial Mortgage Corporation, as
special servicer, and Norwest Bank Minnesota, National Association as trustee
(the "Trustee"), with respect to the DLJ Commercial Mortgage Corp. Commercial
Mortgage Pass-Through Certificates, Series 2000-CF1 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting access to the following information (the
"Information") for use in evaluating such possible investment:
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the
Trustee, be 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 in the event the undersigned purchases
any Certificate or any interest in any Certificate, 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
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confidential; and provided that the undersigned may provide all or any
part of the Information to its auditors, legal counsel and regulators.
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
Non-Registered Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities Act.
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.
--------------------------------------
[PROSPECTIVE PURCHASER]
By:
----------------------------------
Name:
Title:
Telephone No.:
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<PAGE>
EXHIBIT M
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
M-1
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 20, 2000, between Column Financial, Inc., a Delaware
corporation ("Column"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller") and DLJ Commercial
Mortgage corp., a Delaware corporation ("DLJCMC"), as purchaser (in such
capacity, together with its successors and permitted assigns hereunder, the
"Purchaser").
RECITALS
Column desires to sell, assign, transfer, set over and otherwise convey to
DLJCMC, without recourse, and DLJCMC desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended
from time to time pursuant to the terms hereof. Each Mortgage Loan was
originated by the Seller, Union Capital Investments, LLC ("Union Capital") or
The Capital Company of America LLC. With respect to those Mortgage Loans
identified on the Mortgage Loan Schedule as having been originated by Union
Capital (each such Mortgage Loan, a "Union Capital Mortgage Loan"), Column is
the beneficiary, either directly or by way of assignment, of certain
representations and warranties made by Union Capital, with respect to the Union
Capital Mortgage Loans pursuant to the Seller's Warranty Certificate dated as of
June 20, 2000 (the "Union Capital Agreement"), from Union Capital in favor of
the Seller. Column also desires to assign to DLJCMC all of its right, title and
interest in, to and under the Union Capital Agreement.
DLJCMC intends to create a trust (the "Trust"), the primary assets of which
will be the Mortgage Loans. Beneficial ownership of the assets of the Trust
(such assets collectively, the "Trust Fund" will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc. and Fitch, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust will be created and the Certificates will be issued pursuant to
a pooling and servicing agreement to be dated as of June 1, 2000 (the "Pooling
and Servicing Agreement"), among DLJCMC, as depositor (in such capacity, the
"Depositor"), Midland Loan Services, Inc. as master servicer (the "Master
Servicer"), GMAC Commercial Mortgage Corporation, as special servicer (the
"Special Servicer"), and Norwest Bank Minnesota, National Association as trustee
(the "Trustee"), relating to the issuance of DLJCMC's Commercial Mortgage
Pass-Through Certificates, Series 2000-CF1 (the "Certificates"). Capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned to them in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date (as defined in Section 1 hereof). It is anticipated
that DLJCMC will transfer the Mortgage Loans to the Trust contemporaneously with
its purchase of the Mortgage Loans hereunder.
DLJCMC intends to sell the Registered Certificates to Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), Goldman, Sachs & Co. ("Goldman") and
Salomon Smith Barney Inc. ("SSBI"), pursuant to an underwriting agreement, dated
the date hereof (the "Underwriting Agreement), among DLJCMC, DLJSC, Goldman and
SSBI; and DLJCMC intends to sell the remaining Certificates (the "Non-Registered
Certificates") to DLJSC, pursuant to a certificate purchase agreement, dated the
date hereof (the "Certificate Purchase Agreement"), between DLJCMC and DLJSC.
The Registered Certificates are more fully described in the prospectus dated
June 20, 2000 (the "Basic
<PAGE>
Prospectus"), and the supplement to the Basic Prospectus dated June 20, 2000
(the "Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"), as each may be amended or supplemented at any time hereafter. The
Non-Registered Certificate is more fully described in the private placement
memorandum dated June 20, 2000 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
Column will indemnify DLJCMC, DLJSC, Goldman and SSBI and certain related
parties with respect to the disclosure regarding the Mortgage Loans and
contained in the Prospectus, the Memorandum and certain other disclosure
documents and offering materials relating to the Certificates, pursuant to an
indemnification agreement, dated the date hereof (the "Indemnification
Agreement"), among Column, DLJCMC, DLJSC, Goldman and SSBI.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on June 27, 2000 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As of the close
of business on June 1, 2000 (the "Cut-off Date"), the Mortgage Loans will have
an aggregate principal balance, after application of all payments of principal
due on the Mortgage Loans on or before such date, whether or not received, of
$886,241,440, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be $_______________, together with accrued interest on
the Mortgage Loans at their respective Net Mortgage Rates from and including the
Cut-off Date to but not including the Closing Date, and the Purchaser shall pay
such purchase price to the Seller on the Closing Date by wire transfer in
immediately available funds or by such other method as shall be mutually
acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans, including all interest and principal received on or with respect
to the Mortgage Loans after the Cut off Date (other than scheduled payments of
interest and principal due on or before the Cut- off Date), together with all of
the right, title and interest of the Seller in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans, and all of the right,
title and interest of the Seller in, to and under each Union Capital Originator
Agreement; provided, however, that the Seller's rights under any Union Capital
Originator Agreement, as assignee, and the rights the Seller is conveying
hereunder, do not include any rights of its assignor to indemnification under
Section 4 of any such agreement.
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
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(c) On or before the Closing Date, the Seller shall, at its expense,
deliver or cause to be delivered to the Purchaser or its designee the Mortgage
File and any Additional Collateral (other than reserve funds) with respect to
each Mortgage Loan. In addition, with respect to each Mortgage Loan under which
any Additional Collateral is in the form of a Letter of Credit as of the Closing
Date, the Seller shall cause to be prepared, executed and delivered to the
issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are necessary to cause the recognition, under such Letter of
Credit, of the Purchaser or its designee as the beneficiary thereof and drawing
party thereunder. Unless the Purchaser notifies the Seller in writing to the
contrary, the designated recipient of the items described in the second
preceding sentence, and the designated beneficiary under each Letter of Credit
referred to in the preceding sentence, shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original or certified
recorded document or original policy of title insurance which is to be delivered
as part of the related Mortgage File, solely because the Seller is delayed in
making such delivery by reason of the fact that such original or certified
recorded document has not been returned by the appropriate recording office or
such original policy of title insurance has not yet been issued, then the Seller
shall notify the Purchaser in writing of such delay and shall deliver such
documents to the Purchaser or its designee, promptly upon the Seller's receipt
thereof.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items: (i) originals or copies of
all financial statements, appraisals, environmental/ engineering reports,
leases, rent rolls and tenant estoppels in the possession or under the control
of the Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans; and (ii) all unapplied reserve funds and escrow payments in the
possession or under the control of the Seller that relate to the Mortgage Loans.
Unless the Purchaser notifies the Seller in writing to the contrary, the
designated recipient of the items described in clauses (i) and (ii) of the
preceding sentence shall be the Master Servicer.
(d) The Seller shall be responsible for all costs and expenses associated
with recording and/or filing any and all assignments and other instruments of
transfer with respect to the Mortgage Loans that are required to be recorded or
filed, as the case may be, under the Pooling and Servicing Agreement; provided
that the Seller shall not be responsible for actually recording or filing any
such assignments or other instruments of transfer. If the Seller receives notice
that any such assignment or other instrument of transfer is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall prepare or cause the preparation of a substitute therefor or cure
such defect, as the case may be. The Seller shall provide the Purchaser or its
designee with a power of attorney to enable it or them to record any loan
documents that the Purchaser has been unable to record. Unless the Purchaser
notifies the Seller in writing to the contrary, the designated recipient of the
power of attorney referred to in the preceding sentence shall be the Master
Servicer and Special Servicer.
On or before the Closing Date (and in connection with any Substitution of
Mortgage Loans pursuant to Section 5 hereof) the Seller shall deposit with the
Purchaser or its designee a cash amount equal to the product of $375.00 times
the number of Mortgage Loans (the "Recording/Filing Reserve Funds") delivered
hereunder on the Closing Date (or in connection with such Substitution), which
cash amount is to be applied toward the recording and filing of assignments and
other instruments of transfer with respect to such Mortgage Loans, as
contemplated
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<PAGE>
herein and in the Pooling and Servicing Agreement. Upon the completion of all
recording and filing of all assignments and other instruments of transfer with
respect to all the Mortgage Loans delivered hereunder on the Closing Date (or in
connection with any particular substitution of Mortgage Loans pursuant to
Section 5 hereof), as contemplated herein and in the Pooling and Servicing
Agreement, if the total Reserve/Recording Reserve Funds delivered by the Seller
to the Purchaser or its designee with respect to such Mortgage Loans (or such
Replacement Mortgage Loans are insufficient to reimburse the Purchaser or its
designee for all costs and expenses reasonably incurred by or on behalf of the
Purchaser in connection with such recording and filing, the Purchaser or its
designee shall notify the Seller in writing and the Seller shall promptly remit
to the Purchaser the amount of any such shortfall. For purposes of this
paragraph, Mortgage Loans delivered hereunder, on the Closing Date and
Replacement Mortgage Loans delivered in connection with any substitution of
Mortgage Loans pursuant to Section 5 hereof are to be treated separately.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof. In
connection with the foregoing, the Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Seller to the Purchaser.
(g) The Seller shall, within 15 days of its discovery of, or receipt of
notice regarding, any error on the Mortgage Loan Schedule, amend such Mortgage
Loan Schedule and deliver to the Purchaser or the Trustee, as the case may be,
an amended Mortgage Loan Schedule. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files for, and any other documents and records relating to, the Mortgage Loans,
that may be undertaken by or on behalf of the Purchaser. The fact that the
Purchaser has conducted or has failed to conduct any partial or complete
examination of any of the Mortgage Files for, and/or any of such other documents
and records relating to, the Mortgage Loans, shall not affect the Purchaser's
right to pursue any remedy available in equity or at law for a breach of the
Seller's representations and warranties made pursuant to Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
Purchaser, DLJSC, Goldman and SSBI) who may be entitled to any commission or
compensation in connection with the sale to the Purchaser of the Mortgage Loans.
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<PAGE>
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof), whether by
the Seller pursuant to Section 5(a) of this Agreement or by Union Capital
pursuant to the Union Capital Agreement, each of the representations and
warranties set forth in Exhibit B and Exhibit C (other than, in the case of a
Replacement Mortgage Loan substituted by Union Capital, the representations and
warranties set forth in Paragraph (d) of Exhibit B and Paragraph 2 of Exhibit C)
to this Agreement. From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
(e) It is understood and agreed that the representations and warranties set
forth in this Section 4 shall survive delivery of the respective Mortgage Files
to the Purchaser or its designee and shall inure to the benefit of the Purchaser
for so long as any of the Mortgage Loans remains outstanding, notwithstanding
any restrictive or qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within 90 days of the earlier of discovery or receipt of notice by the
Seller that there has been a Material Breach or a Material Document Defect (such
90-day period, the "Initial Resolution Period"), the Seller shall, subject to
subsection (b) below, (i) cure such Material Breach or Material Document Defect,
as the case may be, in all material respects or (ii) repurchase each affected
Mortgage Loan (each, a "Defective Mortgage Loan") at the related Purchase Price,
with payment to be made in accordance with the directions of the Purchaser;
provided that if (i) any such Material Breach or Material Document Defect, as
the case may be, does not relate to whether the Defective Mortgage Loan was, as
of the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the
related date of substitution), a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material
Breach or Material Document Defect, as the case may be, is capable of being
cured but not within the applicable Initial Resolution Period, (iii) the Seller
has commenced and is diligently proceeding with the cure of such Material Breach
or Material Document Defect, as the case may be, within the applicable Initial
Resolution Period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the applicable Initial
Resolution Period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Material Breach
or Material Document Defect, as the case may be, will be cured within an
additional period not to exceed the applicable Resolution Extension Period (as
defined below), then the Seller (except with respect to United Capital Mortgage
Loans as provided in Section 5(b)) shall have an additional period equal to the
applicable Resolution Extension Period to complete such cure or, failing such,
to repurchase the Defective Mortgage Loan; and provided, further, that if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)) and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan (but, in any event, no later than such
repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in
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<PAGE>
accordance with the terms of the Pooling and Servicing Agreement. Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis (subject to any right of a Designated Sub-Servicer to
continue to sub-service such Defective Mortgage Loan as set forth in the related
Designated Sub-Servicer Agreement). The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or
Material Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect to any
Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(b) for purposes of remediating a Material Document Defect with respect to
any Mortgage Loan that is and remains a Performing Mortgage Loan
throughout the applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and
ending on, and including, the earlier of (i) the 90th day following
the end of such Initial Resolution Period and (ii) the 45th day
following the Seller's receipt of written notice from the Purchaser or
its designee of the occurrence of any Servicing Transfer Event with
respect to such Mortgage Loan subsequent to the end of such Initial
Resolution Period;
(c) for purposes of remediating a Material Document Defect with respect to
any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
the earlier of (i) the end of such Initial Resolution Period and (ii)
the Seller's receipt of written notice from the Purchaser or its
designee of the occurrence of such Servicing Transfer Event; and
(d) for purposes of remediating a Material Document Defect with respect to
any Mortgage Loan that is a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-)
days, provided that , if the Seller did not receive written notice
from the Purchaser or its designee of the relevant Servicing Transfer
Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event will be deemed to have
occurred during such Initial Resolution Period and clause (c) of this
definition will be deemed to apply.
The Seller shall be entitled to designate specific officers to receive the
notices contemplated above in the definition of "Resolution Extension Period",
and the Seller shall be deemed not to have received any such notice until
delivered or received in accordance with Section 9 below.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its designee shall use its best efforts, subject
to the terms of the related Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the
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cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto; provided that no
such termination shall be effected unless and until the Purchaser has received
from the Seller or, in the case of a Union Capital Mortgage Loan, Union Capital
(i) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool and (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates.
All costs and expenses incurred by the Purchaser or its designee pursuant to
this paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased or replaced. If the cross-collateralization
of any Cross-Collateralized Group cannot be terminated as contemplated by this
paragraph, then, for purposes of (i) determining whether any Breach or Document
Defect is a Material Breach or Material Document Defect, as the case may be, and
(ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent cure of the relevant Material Breach or Material Document Defect,
the Defective Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, after the date on which it is added to
the Trust Fund) and on or prior to the related date of repurchase or
replacement, shall belong to the Purchaser and its successors and assigns.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller (or, in the case of a
Defective Mortgage Loan that is repurchased or replaced by a Union Capital
Originator, to such Union Capital Originator).
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set forth in
this Section 5(a) to cure a Material Breach or a Material Document Defect or
repurchase or replace the related Defective Mortgage Loan(s), constitute the
sole remedies available to the Purchaser with respect to a Breach or Document
Defect.
(b) It is hereby acknowledged that with respect to the Union Capital
Mortgage Loans, the rights of the Seller in respect of those certain
representations and warranties made by Union Capital pursuant to the Union
Capital Agreement and assigned by the Seller to the Purchaser pursuant hereto
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<PAGE>
will, in turn, be assigned by the Purchaser to the Trustee, as trustee under the
Pooling and Servicing Agreement, for the benefit of the Certificateholders.
Accordingly, it is hereby agreed that if, with respect to any Union Capital
Mortgage Loan, there exists a breach of any of Union Capital's representations
and warranties for which Union Capital could be required to repurchase or (at
its option, to the extent of its substitution rights and subject to the Seller's
right to approve any Replacement Mortgage Loan delivered thereunder) replace
such Union Capital Mortgage Loan, then notwithstanding that such Union Capital
Mortgage Loan may also constitute a Defective Mortgage Loan for purposes of
Section 5(a) of this Agreement by reason of a Material Breach, the Seller shall
be deemed not to have notice of such Material Breach (and, correspondingly, not
to be obligated to proceed with the cure of such Material Breach or the
repurchase of or substitution for such Union Capital Mortgage Loan) unless and
until Union Capital shall have failed to cure such Material Breach or repurchase
or replace such Union Capital Mortgage Loan during the cure period for the
breach of its representations and warranties set forth in the Union Capital
Agreement; provided that this sentence shall not apply in the event of a
Material Breach that relates to whether the Defective Mortgage Loan was, as of
the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the date
it was added to the Trust Fund), a Qualified Mortgage; and, provided, further,
that, if, as a result of the failure of Union Capital to cure a Material Breach
on the part of the Seller with respect to a Union Capital Mortgage Loan or
repurchase or replace such Union Capital Mortgage Loan during the applicable
cure period, the Seller is obligated to cure such Material Breach on its part or
repurchase or replace such Union Capital Mortgage Loan, the Seller shall be
obligated to do so within 90 days following the end of the
cure/repurchase/substitution period for Union Capital and the Seller shall not
be entitled to the additional 90-day cure period that is provided for in Section
5(a) of this Agreement with respect to Mortgage Loans that are not Union Capital
Mortgage Loans. In addition, if the price at which any Union Capital Mortgage
Loan is required to be repurchased by Union Capital, or the additional cash
amount to be paid together with the delivery of one or more Replacement Mortgage
Loans substituted by Union Capital for any Union Capital Mortgage Loan, in
either case in connection with a breach of Union Capital's representations and
warranties as contemplated above, is less than the applicable Purchase Price or
Substitution Shortfall Amount, as the case may be, the Seller shall make-up the
difference out of its own funds (payment of such difference to be made in
accordance with the directions of the Purchaser).
(c) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that the Purchaser shall
have executed and delivered such instruments of transfer or assignment then
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller (i) the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), to the extent that such
ownership interest was transferred to the Purchaser hereunder, and (ii) in the
case of a Union Capital Mortgage Loan, the rights in respect of such Union
Capital Mortgage Loan under the Union Capital Agreement that were assigned to
the Purchaser hereunder.
(d) If the Purchaser has identified as of October 27, 2001 one or more
conditions that will become Recording/Title Policy Omissions with respect to any
Mortgage Loan on December 27, 2001 if not earlier corrected, the Purchaser or
any of its designees shall, on or about October 27, 2001 (or, if such day is not
a Business Day, the first Business Day thereafter), provide written notification
of the conditions that could become Recording/Title Policy Omissions to the
Seller. On the later of December 27, 2001 and 60 days following delivery of the
notice contemplated by the prior sentence, the Purchaser may, in its sole
discretion, require the Seller to (and, at the direction of the Purchaser or its
designee, the Seller shall) establish a Recording/Title Policy Reserve or
deliver a Recording/Title Policy Credit with respect to each Mortgage Loan that
then has a Recording/Title Policy Omission. In furtherance of the preceding
sentence, the Purchaser or its designee shall establish one or more accounts
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(individually and collectively, the "Special Reserve Accounts"), each of which
shall be an Eligible Account, and the Purchaser or its designee shall deposit
any Recording/Title Policy Reserve into the Special Reserve Account within one
Business Day of receipt. The Seller may direct the Purchaser to invest or cause
the investment of the funds deposited in the Special Reserve Account in one or
more Permitted Investments that bear interest or are sold at a discount and that
mature, unless payable on demand, no later than the Business Day prior to the
next Master Servicer Remittance Date. The Purchaser shall act upon the written
instructions of the Seller with respect to the investment of funds in the
Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate written instructions from the Seller, the Purchaser shall
have no obligation to invest or direct the investment of funds in such Special
Reserve Account. All income and gain realized from the investment of funds
deposited in such Special Reserve Account shall be for the benefit of the Seller
and shall be withdrawn by the Purchaser or its designee and remitted to the
Seller on each Master Servicer Remittance Date (net of any losses incurred), and
the Seller shall remit to the Purchaser from the Seller's own funds for deposit
into such Special Reserve Account the amount of any realized losses (net of
realized gains) in respect of such Permitted Investments immediately upon
realization of such net losses and receipt of written notice thereof from the
Purchaser; provided that the Seller shall not be required to make any such
deposit for any realized loss which is incurred solely as a result of the
insolvency of the federal or state depository institution or trust company that
holds such Special Reserve Account. Neither the Purchaser nor any of its
designees shall have any responsibility or liability with respect to the
investment directions of the Seller, the investment of funds in the Special
Reserve Account in Permitted Investments or any losses resulting therefrom. A
Recording/Title Policy Credit shall (i) entitle the Purchaser or its designee to
draw upon the Recording/Title Policy Credit on behalf of the Purchaser upon
presentation of only a sight draft or other written demand for payment, (ii)
permit multiple draws by the Purchaser or its designee, and (iii) be issued by
such issuer and containing such other terms as the Purchaser or its designee may
reasonably require to make such Recording/Title Policy Credit reasonably
equivalent security to a Recording/Title Policy Reserve in the same amount. Once
a Recording/Title Policy Reserve or Recording/Title Policy Credit is established
with respect to any Mortgage Loan, the Purchaser or its designee shall, from
time to time, withdraw funds from the related Special Reserve Account or draw
upon the related Recording/Title Policy Credit, as the case may be, and apply
the proceeds thereof to pay the losses or expenses directly incurred by the
Purchaser or its designee as a result of a Recording/Title Policy Omission. The
Recording/Title Policy Reserve or Recording/Title Policy Credit or any unused
balance thereof with respect to each Mortgage Loan will be released to the
Seller by the Purchaser upon the earlier of the Seller's cure of all
Recording/Title Policy Omissions with respect to such Mortgage Loan (provided
that the Purchaser has been reimbursed with respect to all losses and expenses
relating to Recording/Title Policy Omissions with respect to such Mortgage Loan)
or such Mortgage Loan no longer being a part of the Trust Fund under the Pooling
and Servicing Agreement. The rights to require and apply the proceeds of a
Recording/Title Policy Reserve or Recording/Title Policy Credit with respect to
a Mortgage Loan under this Section 5(d) are in addition to the rights afforded
with respect to a Defective Mortgage Loan under Section 5(a), and the exercise
of rights with respect to a Mortgage Loan under this Section 5(d) shall not
preclude or otherwise limit the exercise of rights afforded with respect to a
Defective Mortgage Loan under Section 5(a) or constitute a waiver thereof.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 875 Third Avenue,
New York, New York 10022 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
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(i) All of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement, duly executed by the Purchaser and the Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by an executive officer of the Seller, in his or her
individual capacity, and dated the Closing Date, and upon which the DLJCMC,
DLJSC, Goldman, SSBI and the Rating Agencies (collectively, for purposes of
this Section 7, the "Interested Parties") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Seller
authorizing the Seller's entering into the transactions contemplated by
this Agreement, and (B) the certificate of incorporation and by-laws of the
Seller;
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(iv) A certificate of good standing with respect to the Seller issued
by the Secretary of State of the State of Delaware not earlier than 10 days
prior to the Closing Date, and upon which the Interested Parties may rely;
(v) A Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller and dated the
Closing Date, and upon which the Interested Parties may rely;
(vi) A written opinion of Long Aldridge & Norman, special counsel for
the Seller, substantially in the form of Exhibit D-3A hereto (with any
modifications required by any rating agency (each, a "Rating Agency")
identified in the Prospectus Supplement or the Memorandum), and subject to
such reasonable assumptions, qualifications and limitations as may be
requested by counsel for the Seller and acceptable to counsel for the
Purchaser), dated the Closing Date and addressed to DLJCMC, the Trustee,
DLJSC, Goldman, SSBI and, if requested thereby, each Rating Agency; a
written opinion of Sidley & Austin, special counsel for the Seller,
substantially in the form of Exhibit D-3B hereto (with any modifications
required by any Rating Agency, and subject to such reasonable assumptions,
qualifications and limitations as may be requested by counsel for the
Seller and acceptable to counsel for the Purchaser), dated the Closing Date
and addressed to DLJCMC, the Trustee, DLJSC, Goldman, SSBI and, if
requested thereby, each Rating Agency; and, such other written opinions as
may be required by any Rating Agency;
(vii) One or more comfort letters from Arthur Andersen LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and satisfactory in form
and substance to the Purchaser and counsel for the Purchaser stating in
effect that, using the assumptions and methodology used by the Depositor,
all of which shall be described in such letters, they have recalculated
such numbers and percentages relating to the Mortgage Loans set forth in
any preliminary Prospectus Supplement and the Prospectus Supplement,
compared the results of their calculations to the corresponding items in
any preliminary Prospectus Supplement and the Prospectus Supplement,
respectively, and found each such number and percentage set forth in any
preliminary Prospectus Supplement and the Prospectus Supplement,
respectively, to be in agreement with the results of such calculations.
(viii) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Costs. Whether or not this Agreement is terminated, the Seller
will pay or cause the payment of all expenses incident to the performance of the
obligations of the Seller under this Agreement, including, without limitation,
(i) the fees, disbursements and expenses of the Seller's counsel in connection
with the purchase of the Mortgage Loans and (ii) all other costs and expenses
incident to the performance of the obligations of the Seller hereunder.
The Seller shall also be responsible for the payment of all out-of-pocket
costs and expenses incurred by the Purchaser, including, without limitation, the
fees and disbursements of counsel for the Purchaser.
SECTION 9. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 277 Park Avenue, 9th
Floor,
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New York, New York 10172, Attention: N. Dante LaRocca, or such other address as
may be designated by the Purchaser to the Seller in writing, or, if to the
Seller, addressed to the Seller at 3414 Peachtree Road, N.E., Suite 1140,
Atlanta, Georgia 30326-1113, Attention: President (or, in the case of notices
contemplated by the definition of "Resolution Extension Period", to the Seller
at 277 Park Avenue, 9th Floor, New York, New York 10172, Attention: Mark Brown
or Dante LaRocca), or such other address as may be designated by the Seller to
the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by DLJCMC to the Trustee of its interests in the
Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Georgia Uniform Commercial
Code, the New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; and (e) notifications to, and
acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by
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reference or contained in the certificates of officers of the Seller delivered
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans by the Seller to the Purchaser,
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the substantive laws of the State
of New York, applicable to agreements made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Seller hereby
irrevocably (i) submits to the jurisdiction of any New York State and federal
courts sitting in New York City with respect to matters arising out of or
relating to this Agreement; (ii) agrees that all claims with respect to such
action or proceeding may be heard and determined in such New York State or
federal courts; (iii) waives, to the fullest possible extent, the defense of an
inconvenient forum; and (iv) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto,
DLJCMC is expressly authorized to assign its rights and obligations under this
Agreement, in whole or in part, to the Trustee for the benefit of the registered
holders and beneficial owners of the Certificates. To the extent of any such
assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
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SECTION 17. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgage Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. Entire Agreement.
Except as otherwise expressly contemplated hereby, this Agreement
constitutes the entire agreement and understanding of the parties with respect
to the matters addressed herein, and this Agreement supersedes any prior
agreements and/or understandings, written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
COLUMN FINANCIAL, INC.
By:
--------------------------------
Name:
Title:
DLJ COMMERCIAL MORTGAGE CORP.
By:
--------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
<PAGE>
EXHIBIT B
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not: (i) violate
the Seller's organizational documents; or (ii) 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 indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is applicable to it
or any of its assets, which default or breach, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller 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.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof 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 Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best of
the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Seller to perform its
obligations hereunder or the financial condition of the Seller.
B-1
<PAGE>
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(j) The Seller is not transferring the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud its present or future creditors.
(k) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser,
as contemplated herein.
(l) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
(m) The Seller does not intend to, and does not believe that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
(n) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(o) The principal place of business and chief executive office of the
Seller is located in Atlanta, Georgia.
(p) The Seller is a wholly-owned subsidiary of DLJ Mortgage Capital, Inc.
B-2
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" AND
OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN THE ACTUAL STATE OF KNOWLEDGE
OF THE SELLER REGARDING THE MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING
CONDUCTED ANY INDEPENDENT INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION
TO HAVE DONE SO (EXCEPT AS EXPRESSLY SET FORTH HEREIN).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (in accordance
with the requirements of the Pooling and Servicing Agreement) and correct in all
material respects as of the date of this Agreement and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, 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 Mortgage Loan to or at the direction of the Purchaser
free and clear of any and all pledges, liens, charges, security interests and/or
other encumbrances. Upon completion of the conveyance contemplated hereby, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to such Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. 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.
3. Payment Record. As of the Closing Date, no scheduled payment of
principal and interest under any Mortgage Loan was 30 days or more past due, and
no Mortgage Loan has been 30 days or more past due as to any scheduled payment
of principal and interest since origination.
4. 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 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate 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 that are
of public record and/or are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy or a
"marked-up" commitment), none of which materially interferes with the security
intended to be provided by such Mortgage, the current use of the related
Mortgaged Property or the ability of the related Mortgaged Property to generate
income sufficient to service such Mortgage Loan, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or "marked-up" commitment), none
of which materially interferes with the security intended to be provided by such
Mortgage, the current use of the related Mortgaged Property or the ability of
the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan, (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the use of the related Mortgaged Property or the ability of the
related Mortgaged Property to generate income sufficient to service the related
Mortgage Loan, (e) the rights of tenants to remain (whether under ground leases
or space leases) at the
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<PAGE>
Mortgaged Property following a foreclosure or similar proceeding (provided that
such tenants are performing under such leases) and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) 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 thereof from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
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 13 below, enforceable first priority lien on and security interest in
the property and rights described therein; and each assignor thereunder has the
full right to assign the same. The related assignment of such Assignment of
Leases executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid and binding assignment thereof from the relevant
assignor to the Trustee. To the Seller's knowledge, no person owns any interest
in any payments due under the related leases that is superior to the lien
created by such Assignment of Leases, if any.
6. Mortgage Status; Waivers and Modifications. No Mortgage related to a
Mortgage Loan has been satisfied, canceled, 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. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases related to a Mortgage Loan have been impaired,
waived, altered or modified in any material respect (and no agreement to effect
any such action exists), except by written instruments, all of which are
included in the related Mortgage File.
7. Condition of Property; Condemnation. Except in the case of the Mortgaged
Properties identified on Schedule C-1 (for which inspection reports were
prepared more than 12 months, but not more than 18 months, prior to the Closing
Date), each Mortgaged Property securing a Mortgage Loan is, to the Seller's
knowledge, based on its review of an inspection report prepared no more than 12
months prior to the Closing Date (which, if prepared by a servicer of such
Mortgage Loan, was so prepared in accordance with the related servicing
agreement), free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in such case where
an escrow of funds exists sufficient to effect the necessary repairs and
maintenance). The Seller has not received notice (and is not otherwise aware) of
any proceeding pending for the total or partial condemnation of or affecting the
Mortgaged Property securing any Mortgage Loan. To the Seller's knowledge, as of
the date of the origination of each Mortgage Loan, all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below 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.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") in the original principal
amount of such Mortgage Loan after all advances of principal insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the exceptions stated therein (or, if such Title Policy has yet
to be issued, a pro forma title policy or
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<PAGE>
marked up title insurance commitment on which the required premium has been
paid, exists and evidences that such Title Policy will be issued), none of which
materially interferes with the security intended to be provided by such
Mortgage, the current use of the related Mortgaged Property or the ability of
the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. Such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) is in full force and effect, all premiums thereon have
been paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder (and the Seller has not
received notice of any material claims having been made or paid thereunder). No
holder of the related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately following
the transfer and assignment of the related Mortgage Loan to the Trustee, such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Trustee without the consent of or
notice to the insurer. The insurer issuing such Title Policy is qualified to do
business in the jurisdiction in which the related Mortgaged Property is located,
and such Title Policy contains no exclusion for, or it affirmatively insures
(unless, in the case of clauses (b) and (c) below, the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is not
available), (a) access to a public road, (b) that there are no material
encroachments of any part of the improvements on the related Mortgaged Property
over easements, which encroachments could reasonably be expected to materially
interfere with the use of the related Mortgaged Property, and (c) that the area
shown on the survey conducted in connection with the origination of the related
Mortgage Loan is the same as the property legally described in the related
Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been made but a portion thereof is being held in escrow with the mortgagee
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
exceptions set forth in Paragraph 13 below, enforceable provisions 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.
11. Trustee under Deed of Trust. If the Mortgage in respect of any Mortgage
Loan is a deed of trust, (a) a trustee, duly qualified under applicable law to
serve as such, is properly designated and serving under such Mortgage, and (b)
except in connection with a trustee's sale after default by the related
Borrower, no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-2A (as to which properties no environmental
testing was conducted in connection with the origination of the related Mortgage
Loan) or Schedule C-2B (as to which properties an environmental site assessment
or update was performed more than 12 months, but not more than 18 months, prior
to the Closing Date), an environmental site assessment or update was performed
with respect to each Mortgaged Property no more than 12 months prior to the
Closing Date (which assessment or update addressed lead-based paint, radon and
asbestos to the extent assessments addressing such items are customary in
connection with similar properties such as the applicable Mortgaged Property), a
report of each such assessment, if any (an "Environmental Report"), has been
delivered to the Purchaser, and either: (x) no such Environmental Report, if
any, reveals any known circumstances or conditions with respect to the related
Mortgaged Property that rendered such
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<PAGE>
Mortgaged Property, at the date of such Environmental Report, in material
violation of any applicable environmental laws; or (y) if any such Environmental
Report does reveal any such circumstances or conditions with respect to the
related Mortgaged Property and the same have not been subsequently remediated in
all material respects, then either (i) the expenditure of funds necessary to
effect such remediation is not material in relation to the outstanding principal
balance of the related Mortgage Loan, or (ii) a sufficient escrow of funds
exists for purposes of effecting such remediation, or (iii) the related Borrower
or other responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions as have been required by the
applicable governmental regulatory authority, or (iv) the related Mortgaged
Property is insured under a policy of insurance, subject to certain per
occurrence and aggregate limits and a deductible, against certain losses arising
from such circumstances and conditions. To the Seller's knowledge, there are no
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage encumbering each
Mortgaged Property requires the related Borrower to comply and cause such
Mortgaged Property to comply with all applicable federal, state and local
environmental laws and regulations. All such Environmental Reports in the
possession of the Seller that relate to a Mortgaged Property covered by an
environmental insurance policy under which the Seller is an insured, have been
delivered or disclosed to the insurer prior to the issuance of such policy.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower with respect to each Mortgage
Loan 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 Borrower with respect to
such Mortgage Note, Mortgage or other agreements.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured against loss by hazards of extended
coverage in an amount at least equal to the lesser of the outstanding principal
balance of such Mortgage Loan and 100% of the full replacement cost of the
improvements located on the related Mortgaged Property, and if applicable, the
related hazard insurance policy contains appropriate endorsements to avoid the
application of co-insurance and does not permit reduction in insurance proceeds
for depreciation. Each Mortgaged Property securing a Mortgage Loan is the
subject of a business interruption insurance policy providing coverage for at
least six (6) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than six months of rental income).
If any portion of the improvements on a Mortgaged Property securing any Mortgage
Loan was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Flood Emergency Management Agency as
having special flood hazards, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable value of such Mortgaged Property, and (3) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended.
All such hazard and flood insurance
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<PAGE>
policies contain a standard mortgagee clause for the benefit of the holder of
the related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without ten (10) days' prior written notice to the mortgagee and all premiums
payable thereon as of the Closing Date, whether annual or otherwise, have been
paid. Each Mortgaged Property securing a Mortgage Loan is also covered by
comprehensive general liability insurance in an amount at least equal to $1
million per occurrence. With respect to each Mortgage Loan, the related Mortgage
requires that the related Borrower maintain insurance as described above or
permits the Mortgagee to require insurance as described above. No notice of
termination, cancellation or reduction has been received by the Seller with
respect to any such hazard, flood or liability insurance policy. Except under
circumstances that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, the Mortgage for each
Mortgage Loan provides that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of the related Mortgaged Property or to the payment of amounts
due under such Mortgage Loan; provided that the related Mortgage may entitle the
related Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property and payment of amounts due under
the Mortgage Loan; and provided further that if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below).
15. Taxes and Assessments. To the Seller's knowledge, there are no
delinquent taxes or assessments or other outstanding charges affecting any
Mortgaged Property securing a Mortgage Loan that are a lien of priority equal to
or higher than the lien of the related Mortgage and that are not otherwise
covered by an escrow of funds sufficient to pay such charge. 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
payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is, to the Seller's
knowledge, a debtor or defendant in any state or federal bankruptcy, insolvency
or similar proceeding, and no Mortgaged Property is subject to any such
proceeding.
17. Local Law Compliance. To the Seller's knowledge, based on due diligence
customarily undertaken by prudent commercial mortgage lenders, the improvements
located on or forming part of each Mortgaged Property securing a Mortgage Loan
are in material compliance with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply and does not constitute a legal non-conforming use or
structure, such non-compliance and failure does not materially and adversely
affect the value of the related Mortgaged Property.
18. Leasehold Estate Only. If such Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease of all or a material portion of a
Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from the ground lessor, a
"Ground Lease"), but not by the related fee interest in such Mortgaged Property
or such material portion thereof (the "Fee Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the related Mortgage
File;
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<PAGE>
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other than
the related Fee Interest and Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
(except in the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Mansion House) is thereafter
further assignable by, the Purchaser upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it
either has been obtained or cannot be unreasonably withheld).
(d) At the date of origination of the Mortgage Loan, such Ground Lease
was in full force and effect, and the Seller has not received as of the
Closing Date actual notice that any material default has occurred under
such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan
(provided that such mortgagee has provided the lessor with notice of its
lien in accordance with the provisions of such Ground Lease). In addition,
except in the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Mansion House, such Ground
Lease further provides that no notice of termination given under such
Ground Lease is effective against the mortgagee under such Mortgage Loan
unless a copy has been delivered to such mortgagee in the manner described
in such Ground Lease;
(f) The mortgagee under such Mortgage Loan 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 either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan (or, in the case of the Mortgage Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as Mansion
House, extends not less than ten (10) years beyond the Stated Maturity
Date, and twenty (20) years beyond the Anticipated Repayment Date, for such
Mortgage Loan), or (ii) has an original term which does not end prior to
the third anniversary of the Stated Maturity Date of such Mortgage Loan and
has extension options that, if exercised, would cause the term of such
Ground Lease to extend not less than twenty (20). beyond the Stated
Maturity Date of such Mortgage Loan;
(h) Except in the case of the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as Mansion House, such
Ground Lease requires the lessor to enter into a new lease with a mortgagee
upon termination of such Ground Lease as a result of a rejection of such
Ground Lease in a bankruptcy proceeding involving the related Borrower;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds with respect to the
leasehold interest will be applied either (i) to the repair or restoration
of all or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in such cases where a
C-1-6
<PAGE>
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(j) Except in the case of the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as Mansion House, such
Ground Lease does not impose any restrictions on subletting which would be
viewed as commercially unreasonable by a prudent commercial mortgage
lender; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to such Ground Lease for
any reason, or in any manner, which would materially adversely affect the
security provided by the related Mortgage;
(k) Except in the case of the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as Mansion House, such
Ground Lease may not be amended or modified without the prior consent of
the mortgagee under such Mortgage Loan, and any such action without such
consent is not binding on such mortgagee, its successors or assigns;
(l) Unless otherwise set forth in such Ground Lease, such Ground Lease
does not permit any increase in the amount of rent payable by the ground
lessee thereunder during the term of such Mortgage Loan; and
(m) The terms of such Ground Lease have not been waived, modified,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
the related Mortgage.
19. Leasehold Estate and Fee Interest. If any Mortgage Loan is secured in
whole or in part by the interest of the related Borrower under a Ground Lease
and by the related Fee Interest:
(a) Such Fee Interest is subject, and subordinated of record, to the
related Mortgage;
(b) The related Mortgage does not by its terms provide that it will be
subordinated to the lien of any other mortgage or other lien upon such Fee
Interest; and
(c) Upon occurrence of a default under the terms of the related
Mortgage by the related Borrower, the mortgagee has the right to foreclose
upon or otherwise exercise its rights with respect to such Fee Interest
within a period of time that would not have been viewed, as of the date of
origination, as commercially unreasonable by a prudent commercial mortgage
lender.
20. Escrow Deposits. With respect to escrow deposits and payments relating
to any Mortgage Loan, all such payments have been delivered or will be delivered
in accordance with the terms of the Pooling and Servicing Agreement to the
Master Servicer and identified in sufficient detail.
21. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
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<PAGE>
22. Advancement of Funds. The Seller has not, and no holder of a Mortgage
Loan has, to the Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
related Mortgaged Property (other than amounts paid by the tenant as
specifically provided under related lease), directly or indirectly, for the
payment of any amount required by such Mortgage Loan, except for interest
accruing from the date of origination of such Mortgage Loan or the date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
23. Equity Interest. No Mortgage Loan is convertible by its terms into an
equity ownership interest in the related Mortgaged Property or the related
Borrower.
24. Legal Proceedings. To the Seller's knowledge, there are no pending or
threatened actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property or the ability of the Borrower to pay principal, interest or
any other amounts due under such Mortgage Loan.
25. Other Mortgage Liens. Except as otherwise described under "Description
of the Mortgage Pool--Additional Loan and Property Information--Additional and
Other Financing" in the Prospectus Supplement, none of the Mortgage Loans
permits the related Mortgaged Property to be encumbered by any mortgage lien
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof. To the Seller's knowledge, except
as otherwise specified under "Description of the Mortgage Pool--Additional Loan
and Property Information--Additional and Other Financing" in the Prospectus
Supplement, and except for cases involving other Mortgage Loans, the Mortgaged
Properties are not encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgages.
26. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan is free and clear of any and all mechanics'
and materialmen's liens that are not bonded or escrowed for or affirmatively
covered by title insurance, and (ii) 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 unless insured against under the related Title Policy. The
Seller has not received notice with respect to any Mortgage Loan that any
mechanics' and materialmen's liens have encumbered the related Mortgaged
Property since origination that have not been released, bonded or escrowed for
or affirmatively covered by title insurance.
27. Compliance with Usury Laws; No Seller Fraud. Each Mortgage Loan
complied with all applicable usury laws in effect at its date of origination. No
fraud with respect to any Mortgage Loan has taken place on the part of the
Seller in connection with the origination of such Mortgage Loan.
28. Licenses and Permits. To the Seller's knowledge, based on due diligence
customarily performed by commercially reasonable lenders in the origination of
comparable mortgage loans, as of the date of origination of each Mortgage Loan,
(i) the related Borrower was in possession of all material licenses, permits and
authorizations required by applicable law for the ownership of the related
Mortgaged Property and (ii) all such licenses, permits and authorizations were
valid and in full force and effect, and the Seller has not received notice to
the contrary.
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<PAGE>
29. Servicing Practices. The servicing and collection practices used with
respect to the Mortgage Loans have in all material respects been legal and met
customary standards utilized by prudent institutional commercial and multifamily
mortgage loan servicers with respect to "whole loans".
30. Cross-collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool.
31. Releases of Mortgaged Property. 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 (i) payment in full
of all amounts due under the related Mortgage Loan or (ii) delivery of U.S.
Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or, in the case of a Cross-Collateralized Group, the release
of one or more related Mortgaged Properties upon (i) the satisfaction of certain
legal and underwriting requirements and (ii) the payment of a release price and
prepayment consideration in connection therewith; and provided, further, that
certain Cross-Collateralized Groups of Mortgage Loans may permit the related
Borrower to obtain the release of one or more of the related Mortgaged
Properties by substituting comparable real estate property, subject to, among
other conditions precedent, receipt of confirmation from each Rating Agency that
such release and substitution will not result in a qualification, downgrade or
withdrawal of any of its then-current ratings of the Certificates. Each Mortgage
Loan that contains a provision for any defeasance of mortgage collateral permits
defeasance (i) no earlier than two years following the Closing Date, (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) and (iii) to the Seller's
knowledge, only for the purpose of facilitating the disposition of mortgaged
real property and not as part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
32. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that during the period commencing on or about the Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full, (i) additional interest
shall accrue and be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (ii) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
33. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
34. Inspection. In connection with the origination of each Mortgage Loan
(other than the Union Capital Mortgage Loans), the Seller inspected, or caused
the inspection of, the related Mortgaged Property.
35. No Material Default. To the Seller's 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 Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the
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<PAGE>
Mortgage Loan and the related Mortgaged Property; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Seller in this Exhibit C.
36. Due-on-Sale. Subject to exceptions set forth in the related Mortgage,
such Mortgage contains a "due-on-sale" clause that provides for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if, without
the prior written consent of the holder, the Mortgaged Property subject to such
Mortgage, or any controlling interest in the related Borrower, is directly or
indirectly transferred or sold.
37. Due-on-Encumbrance. Each Mortgage contains a "due-on-encumbrance"
clause, except with respect to a limited number of Mortgages which require
either lender approval of any secondary financing or that the related Borrower
satisfy specific criteria set forth in the related loan documents.
38. Single Purpose Entity. Except for the Mortgage Loans secured by the
respective Mortgaged Properties identified on Schedule C-3, the Borrower on each
Mortgage Loan that, individually or together with the Mortgage Loans of
affiliated Borrowers, had a Cut-off Date Principal Balance of $3,000,000 or
more, 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 material 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.
39. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
40. No Waivers. The Seller has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note, except by a written instrument contained in the Mortgage File,
which instrument has been taken into account by the Seller when giving the
representations and warranties set forth herein.
41. Tax Parcels. Except as described on Schedule C-4 of this Agreement,
each Mortgaged Property constitutes one or more complete separate tax lots or is
subject to an endorsement under the related Title Policy or in certain instances
an application has been made to the applicable governing authority for creation
of separate tax lots which shall be effective for the next tax year.
42. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
C-1-10
<PAGE>
43. Security Interests. In connection with the operation of a Mortgaged
Property as a hospitality property, the security agreements, financing
statements or other instruments, if any, related to each Mortgage Loan establish
and create a valid security interest in all items of personal property owned by
the related Borrower material to the conduct in the ordinary course of the
Borrower's business conducted on the related Mortgaged Property, subject only to
purchase money security interests and security interests to secure revolving
lines of credit and similar financing. The related assignment of such security
interest executed and delivered in favor of the Trustee constitutes a legal,
valid and binding assignment thereof from the relevant assignor to the Trustee.
44. Factors that May Affect Coverage Under the Related Environmental
Insurance Policy. With respect to the Mortgaged Properties identified on
Schedule C-5, as to which the Seller did not require an environmental assessment
in connection with the origination of the related Mortgage Loans, the Seller:
(a) has not engaged in any intentional, knowing, willful or deliberate
noncompliance with any statute, regulation, ordinance, administrative complaint,
notice of violation, notice letter, executive order, or instruction of any
governmental agency or body that it knew or should have reasonably foreseen
would result in "Pollution Conditions" within the meaning of such environmental
insurance policy; (b) has not otherwise willfully concealed from, or
misrepresented to, the insurer under such environmental insurance policy any
fact or circumstance material to the granting of coverage under such policy; (c)
has not engaged in any intentionally illegal act or omission that it knew or
should have reasonably foreseen would directly result in "Pollution Conditions"
within the meaning of such environmental insurance policy; (d) has disclosed in
the application for such environmental insurance policy all "Pollution
Conditions" within the meaning of such policy known to the Seller; and (e) has
delivered to the insurer under such environmental insurance policy copies of all
engineering reports in the possession of the Seller with respect to such
Mortgage Properties.
45. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to such Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
46. Delivery of Financial Information. The related Borrower covenanted
under the related Mortgage Loan documents to deliver at least annually to the
mortgagee under each Mortgage Loan an operating statement of the related
Mortgaged Property.
47. Servicing Rights. Except as set forth on Schedule C-6 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
48. Defeasance Costs. If any Mortgage Loan permits defeasance, then the
related Mortgage Loan documents provide that the related Borrower is responsible
for the payment of all reasonable costs and expenses incurred by the related
mortgagee, including rating agency fees (if rating agency approval is required
under the related Mortgage Loan documents) , accountant's fees and lender's
attorney's fees and expenses, in connection with the defeasance of such Mortgage
Loan.
49. Origination by or on Behalf of HUD Approved Mortgagee. The Seller is a
mortgagee approved by the United States Department of Housing and Urban
Development ("HUD") pursuant to Sections 203 and 211 of the National Housing Act
of 1934 (a "HUD Approved Mortgagee"). Except for the Union Capital Mortgage
Loans, each Mortgage Loan has been originated by a HUD-Approved Mortgagee. Each
Union Capital Mortgage Loan was: (a) originated by Union Capital as a result of
the Seller's commitment to purchase such Mortgage Loan at origination; and (b)
underwritten in accordance with guidelines and procedures established and
supervised by the personnel of the Seller.
C-1-11
<PAGE>
Each Union Capital Mortgage Loan was assigned to the Seller at the time of
origination. The source of funds for Union Capital's origination of each Union
Capital Mortgage Loan was the proceeds of its sale of such Mortgage Loan to the
Seller. With respect to each Union Capital Mortgage Loan, Union Capital accepted
an application for such Mortgage Loan and processed the credit documents, which
were then forwarded to the Seller. Based on the Seller's underwriting standards,
the Seller, through its credit committee, underwrote and approved the
application and related credit documents, including the appraisal of the related
Mortgaged Property, and committed to fund each Union Capital Mortgage Loan. Each
Union Capital Mortgage Loan was written either on forms provided by the Seller
or on Union Capital's forms, which were based on the Seller's forms. In order to
determine compliance by Union Capital with the Seller's guidelines,
representatives of the Seller were assigned to oversee the processing of loans
by Union Capital, and such representatives visited Union Capital's offices from
time to time to ensure that the policies and procedures outlined by the Seller
for Union Capital were adhered to.
50. Quarterly Rent Rolls and Operating Statements. The Mortgage for each
Mortgage Loan requires the related Borrower to provide quarterly rent rolls and
operating statements.
51. Licensing; Qualification to Do Business. In the case of each Mortgage
Loan, the Seller (and each predecessor mortgagee, if any, under such Mortgage
Loan) was, for so long as it was the record owner of such Mortgage Loan,
possessed of all licenses necessary to carry on its business under, and
qualified and in good standing and in compliance with, the laws of the State in
which the Mortgaged Property (or, if more than one, each Mortgaged Property)
securing such Mortgage Loan is located, to the extent necessary to ensure the
enforceability of such Mortgage Loan as contemplated by the terms of this
Agreement and the Pooling and Servicing Agreement.
52. Liability of Individuals. Except for the Mortgage Loans secured by the
respective Mortgaged Properties identified on Schedule C-7, where a corporation
is liable, an individual is liable with respect to each Mortgage Loan for fraud,
a misrepresentation, misapplication of funds or violations of environmental laws
by the related Borrower.
53. Assignment of Collateral. There is no material collateral securing any
Mortgage Loan that has not been assigned to the Purchaser.
C-1-12
<PAGE>
SCHEDULE C-1
MORTGAGED PROPERTIES FOR WHICH INSPECTION REPORTS
WERE PREPARED MORE THAN 12 MONTHS, BUT NOT MORE THAN
18 MONTHS, PRIOR TO THE CLOSING DATE.
C-1-1
<PAGE>
SCHEDULE C-2A
MORTGAGED PROPERTIES AS TO WHICH NO ENVIRONMENTAL TESTING
WAS CONDUCTED IN CONNECTION WITH THE ORIGINATION
OF THE RELATED MORTGAGE LOANS
DLJCMC 2000-CF1
# PROPERTY NAME
----------------------------------------------------------------------------
60 Foxhaven Apartments
65a Lithuanian Hall
65b Stable Court
65c Gaskill Court
70 The Colonial Woods Apartments
71 Pikesville Plaza
75 Westminster Townhouse Apartments
80 Pamida Hometown Values
81 Stahl Plaza
83 Autumn Chase / Whisper Cove Apartments
84 Triangle Plaza Shopping Center
85 La Hacienda Apartments
86 Bel Air Center
87 Southwood Court Townhouses
89 Coit Village Shopping Center
90 Broadway Square
91 Oak Hill Manor Apartments
92 Bayou Rouge Apartments
93 Franklin Square Apartments - Syracuse
94 The Villages of Inwood Apartments
96 Liberty Ridge Apartments
97 Twelve Oaks Apartments
98 Catalina Apartments
99 Hickory Hill Apartments
101 Ruse De Ville Apartments
102 Park Place Shopping Center
103 75 Midvale Road
104 Quail Creek Arms Apartments
106 Williamsburg Apartments
107 Winward II Apartments
108 Carriage Hill Apartments
109 Brookview Commons
110 Southview and Westview Apartments
111 Creek Bend Apartments
112 The Willows Townhomes
113 Stuyvesant Avenue Apartments
114 National Mobile Home Park
115 Hollywood Video Store
117 16 and 18-20 Taylor Avenue Apartments
118 Granite Court
119 Timberlakes Apartments
120 Garden Creek Apartments
C-2A-1
<PAGE>
DLJCMC 2000-CF1
# PROPERTY NAME
----------------------------------------------------------------------------
121 Royal Court Apartments
122 Ponderosa Village Mobile Home Park
123 Allen Place & Greenwood Apartments
124 Averil Way Apartments
125 Cheverly 12 Warehouse
126 1055 Clarkson Apartments
127 Circle Apartments
128 Windswept Apartments
C-2A-2
<PAGE>
SCHEDULE C-2B
MORTGAGED PROPERTIES FOR WHICH ENVIRONMENTAL SITE ASSESSMENTS
OR UPDATES WERE CONDUCTED MORE THAN 12 MONTHS, BUT NOT MORE
THAN 18 MONTHS, PRIOR TO THE CLOSING DATE
DLJCMC 2000-CF1
# PROPERTY NAME
----------------------------------------------------------------------------
52 Colerain Towers
46 The Park
29 Klahanie Village Shopping Center
50 Walnut Hills Plaza
61 The Residential Resort
C-2B-1
<PAGE>
SCHEDULE C-3
MORTGAGE LOANS WITH CUT-OFF DATE PRINCIPAL BALANCES OF
$3,000,000 OR MORE AS TO WHICH THE RELATED
BORROWERS ARE NOT SPECIAL PURPOSE ENTITIES
DLJCMC 2000-CF1
# PROPERTY NAME
---------------------------------------------------------------------------
50 Walnut Hills Plaza
49 Decatur Twain Shopping Center
20 North Mathilda Office Center
6 San Mateo Plaza
C-3-1
<PAGE>
SCHEDULE C-4
TAX PARCEL EXCEPTIONS
None
C-4-1
<PAGE>
SCHEDULE C-5
ENVIRONMENTAL INSURANCE EXCEPTIONS
DLJCMC 2000-CF1
# PROPERTY NAME
----------------------------------------------------------------------------
60 Foxhaven Apartments
65a Lithuanian Hall
65b Stable Court
65c Gaskill Court
70 The Colonial Woods Apartments
71 Pikesville Plaza
75 Westminster Townhouse Apartments
80 Pamida Hometown Values
81 Stahl Plaza
83 Autumn Chase / Whisper Cove Apartments
84 Triangle Plaza Shopping Center
85 La Hacienda Apartments
86 Bel Air Center
87 Southwood Court Townhouses
89 Coit Village Shopping Center
90 Broadway Square
91 Oak Hill Manor Apartments
92 Bayou Rouge Apartments
93 Franklin Square Apartments - Syracuse
94 The Villages of Inwood Apartments
96 Liberty Ridge Apartments
97 Twelve Oaks Apartments
98 Catalina Apartments
99 Hickory Hill Apartments
101 Ruse De Ville Apartments
102 Park Place Shopping Center
103 75 Midvale Road
104 Quail Creek Arms Apartments
106 Williamsburg Apartments
107 Winward II Apartments
108 Carriage Hill Apartments
109 Brookview Commons
110 Southview and Westview Apartments
111 Creek Bend Apartments
112 The Willows Townhomes
113 Stuyvesant Avenue Apartments
114 National Mobile Home Park
115 Hollywood Video Store
117 16 and 18-20 Taylor Avenue Apartments
118 Granite Court
119 Timberlakes Apartments
120 Garden Creek Apartments
121 Royal Court Apartments
122 Ponderosa Village Mobile Home Park
123 Allen Place & Greenwood Apartments
124 Averil Way Apartments
125 Cheverly 12 Warehouse
126 1055 Clarkson Apartments
127 Circle Apartments
128 Windswept Apartments
C-5-1
<PAGE>
SCHEDULE C-6
SERVICING RIGHTS EXCEPTIONS
Dyncorp Building - GMAC Commercial Mortgage Corporation
Aztec Square Shopping Center - GMAC Commercial Mortgage Corporation
Brookfield III Office Building - Bloomfield
Galleria at the Renaissance - Mid-North Financial
Hampton Courts Apartments - Bloomfield
Park Place Shopping Center - Mid-North Financial
C-6-1
<PAGE>
SCHEDULE C-7
EXCEPTIONS FOR LIABILITY OF INDIVIDUALS
IN CERTAIN CIRCUMSTANCES
DLJCMC 2000-CF1
# PROPERTY NAME
----------------------------------------------------------------------------
16a Sage Hollow Apartments
16b The Gardens Apartments
16c Elm Creek Apartments
24a The Place at Green Trails Apartments
24b The Harbour Apartments
30a Tanglebrook Apartments
30b Steeplechase Apartments
41a Deerbrook Forest Apartments
41b Chalfonte Apartments
13 Royal Coachman Resort (1A)
14 Paradise Park Resort (1A)
15 Vacation Village Travel Resort (1A)
17 Village of the Four Seasons Mobile Home Park (1B)
18 Parque La Quinta Mobile Home Park (1B)
19 Las Palmas Mobile Home Park (1B)
7 Glendale Marketplace
21 Gateway Plaza
67 Stonewood Village Retail Center
9 Sonora Village Shopping Center
93 Franklin Square Apartments - Syracuse
C-7-1
<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
CERTIFICATE OF SECRETARY OF COLUMN FINANCIAL, INC.
I, Marjorie S. White, hereby certify that I am a duly appointed Secretary
of Column Financial, Inc., a Delaware Corporation ("Column"), and further
certify as follows:
1. Attached hereto as Attachment A are true, correct and complete copies of
the Articles of Incorporation and By-Laws of Column, which are in full force and
effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of Column authorizing and approving Column's execution, delivery and
performance of the Mortgage Loan Purchase Agreement, dated as of June 20, 2000
(the "Mortgage Loan Purchase Agreement"), between DLJ Commercial Mortgage Corp.
as Purchaser and Column as Seller.
3. Attached hereto as Attachment C is a certificate of good standing with
respect to Column issued by the Secretary of State of the State of Delaware
within 10 days of the date hereof and no event (including, without limitation,
any act or omission on the part of Column) has occurred since the date thereof
that has affected the good standing of Column under the laws of the State of
Delaware.
4. Each person who, as an officer or representative of Column, signed the
Mortgage Loan Purchase Agreement or any other document or certificate delivered
by or on behalf of Column prior hereto or on the date hereof in connection with
the transactions contemplated in the Mortgage Loan Purchase Agreement, was, at
the respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signatures.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
June __, 2000.
By:__________________________________
Name: Marjorie S. White
Title: Secretary
D-1-1
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 2000-CF1 Certificate of Column Financial, Inc.
In connection with the execution and delivery by Column Financial, Inc.
("Column") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
June 20, 2000, between DLJ Commercial Mortgage Corp., as purchaser, and Column,
as seller, the undersigned hereby certifies that (i) the representations and
warranties of Column in the Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) Column has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part required under the
Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Agreement.
Certified this __ day of June 2000.
COLUMN FINANCIAL, INC.
By:
-----------------------------
Name:
Title:
D-2-1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION OF COUNSEL TO THE SELLER
LETTERHEAD OF LONG ALDRIDGE & NORMAN LLP
DLJ Commercial Mortgage Corp. Norwest Bank Minnesota, National Association
277 Park Avenue 45 Broadway, 12th Floor
New York, New York 10172 New York, New York 10006
Donaldson, Lufkin & Jenrette Standard & Poor's Rating Services,
Securities Corporation a division of The McGraw-Hill Companies, Inc.
277 Park Avenue 55 Water Street, 41st Floor
New York, New York 10172 New York, New York 10041
Goldman, Sachs & Co. Fitch, Inc.
85 Broad Street One State Street Plaza, 31st Floor
New York, New York 10004 New York, New York 10004
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Re: DLJ COMMERCIAL MORTGAGE CORP., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-CF1
Ladies and Gentlemen:
We have acted as counsel to Column Financial, Inc. (the "Company") in
connection with the sale of certain mortgage loans (collectively, the "Mortgage
Loans") by the Company to DLJ Commercial Mortgage Corp. ("DLJCMC") pursuant to a
Mortgage Loan Purchase Agreement, dated as of June 20, 2000 (the "Agreement"),
between the Company and DLJCMC. This opinion is being delivered to you pursuant
to the Agreement. Capitalized terms not defined herein have the meanings set
forth in the Agreement.
In rendering this opinion letter, we have examined the Agreement, that
certain Indemnification Agreement dated as of June 20, 2000 (the
"Indemnification Agreement") between the Company, DLJCMC, Donaldson, Lufkin &
Jenrette Securities Corporation, Goldman Sachs & Co and Salomon Smith Barney
Inc. and such other documents as we have deemed necessary. As to matter of fact,
we have examined and relied upon, without any independent investigation,
representations of the Company contained in the Agreement and in the Certificate
of Secretary of Column Financial, Inc. attached hereto and, where we have deemed
appropriate, representations or certifications of parties to the Agreement or
public officials. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of
natural persons and the conformity to the originals of all documents submitted
to us as copies. We have assumed that all parties to the Agreement other than
the Company had the corporate power and authority to enter into and perform all
obligations thereunder. As to such parties, we also have assumed the due
authorization by all requisite
D-3A-1
<PAGE>
corporate action, the due execution and delivery and the enforceability of such
documents. We have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreement and have assumed that the
Company is the owner of the Mortgage Loans.
Based upon and subject to the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing and
in good standing under the laws of the State of Delaware and has the requisite
corporate power to own its properties, to conduct its business as presently
conducted by it, to own and to transfer and convey to DLJCMC the Mortgage Loans
and to enter into and perform its obligations under the Agreement.
2. The Agreement and the Indemnification Agreement have each been duly and
validly authorized, executed and delivered by the Company and constitutes a
valid, legal and binding agreements of the Company.
3. No consent, approval, authorization or order of any State of Georgia or
federal court or State of Georgia or federal governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
the Agreement and Indemnification Agreement, except for those consents,
approvals, authorizations or orders that previously have been obtained.
4. Neither the transfer of the Mortgage Loans as provided in the Agreement,
nor the fulfillment of the terms of or the consummation of any other of the
transactions contemplated by the Agreement and Indemnification Agreement, will
result in a breach of any term or provision of the certificate of incorporation
or by-laws of the Company or any State of Georgia or federal statute or
regulation applicable to the Company, or to our knowledge, will conflict with
result in a breach, violation or acceleration of or constitute a default under,
the terms of any indenture or other agreement or instrument to which the Company
is a party or by which it is bound, or any order of any State of Georgia or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company.
5. To our knowledge, there are no actions, proceedings, or investigations
pending or threatened against the Company before any State of Georgia, State of
Delaware or federal court, administrative agency or other tribunal (a) asserting
the invalidity of the Agreement or Indemnification Agreement, (b) seeking to
prevent the consummation of any of the transactions contemplated in the
Agreement, or (c) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability of the
Agreement or Indemnification Agreement.
Where we have rendered our opinion concerning matters "known to us" or this
letter otherwise refers to our knowledge or our attention, such reference shall
mean only the knowledge of William F. Stevens, Clyde E. Click, Barbara a.
McIntyre, W. Gregory Null, Mindy S. Planer or Janice N. Smith, who are the
attorneys in our firm primarily responsible for our services relating to the
Company, and shall not refer to the knowledge of any other person in any way
associated with this firm. You are advised that we have made no independent
investigation or verification of such matters and have not searched or reviewed
the files and records of or relating to Company or such matters in our office,
in the public records, in the possession of company or elsewhere.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of Georgia, the corporate law of the
State of Delaware and the federal law of the United States. We do not express
any opinion concerning the enforceability of the Agreement or the
Indemnification Agreement.
D-3A-2
<PAGE>
Any and all opinions rendered by this firm in this opinion letter are
limited to the matters expressly set forth herein; and no opinion is implied or
to be inferred beyond the matters expressly so stated. This opinion is given as
of the date hereof, and we expressly decline any undertaking to revise or update
this opinion subsequent to the date hereof or to advise you of any matter
arising subsequent to the date hereof, which would cause us to modify the
opinion, in whole or in part.
The opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this letter
may not be furnished to any other person, nor may any portion of this letter be
quoted, circulated or referred to in any other document.
Very truly yours,
D-3A-3
<PAGE>
EXHIBIT D-3B
FORM OF OPINION OF COUNSEL TO THE SELLER
LETTERHEAD OF SIDLEY & AUSTIN
DLJ Commercial Mortgage Corp. Norwest Bank Minnesota, National Association
277 Park Avenue 45 Broadway, 12th Floor
New York, New York 10172 New York, New York 10006
Donaldson, Lufkin & Jenrette Standard & Poor's Ratings Services,
Securities Corporation a division of The McGraw-Hill Companies, Inc.
277 Park Avenue 55 Water Street, 41st Floor
New York, New York 10172 New York, New York 10041
Goldman, Sachs & Co. Fitch, Inc.
85 Broad Street One State Street Plaza, 31st Floor
New York, New York 10004 New York, New York 10004
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-CF1
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column") and
DLJ Commercial Mortgage Corp. ("DLJCMC") in connection with the transactions
contemplated by that certain Mortgage Loan Purchase Agreement, dated as of June
20, 2000 (the "Agreement") between Column and DLJCMC.
This opinion letter is being provided to you pursuant to Section 7(vi) of
the Agreement. Capitalized terms not defined herein have the respective meanings
set forth in, or otherwise assigned to them pursuant to, the Agreement.
For purposes of this opinion letter, we have reviewed the Agreement. In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreement and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Agreement, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures and the authenticity of all documents
Sch-1-1
<PAGE>
submitted to us as originals, (iv) the conformity to the originals of all
documents submitted to us as certified, conformed or photostatic copies, (v) the
due organization of each of the parties to the Agreement and the valid existence
of each such entity in good standing under the laws of its jurisdiction of
organization, (vi) the power and authority of all parties to the Agreement to
enter into, perform under and consummate the transactions contemplated by the
Agreement, without any resulting conflict with or violation of the
organizational documents of any such party or with or of any law, rule,
regulation, order or decree applicable to any such party or its assets, and
without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (vii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreement by the parties thereto, (viii) except
as expressly addressed below, the constitution of the Agreement as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, and (ix) the absence of any other agreement
that supplements or otherwise modifies the intentions and agreements of the
parties to, and as expressed, in the Agreement.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York
(without regard to conflicts of laws principles). In addition, we do not express
any opinion with respect to the tax, securities or "doing business" laws of any
particular jurisdiction or with respect to any matter not expressly addressed
below.
Sch-1-2
<PAGE>
Based upon and subject to the foregoing, we are of the opinion that the
Agreement constitutes a valid, legal binding agreement of Column, enforceable
against Column in accordance with its terms.
The opinion expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Agreement and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
Sch-1-3
<PAGE>
EXHIBIT N
FORM OF UNION CAPITAL AGREEMENT
SELLER'S WARRANTY CERTIFICATE
This Seller's Warranty Certificate, dated as of June 20, 2000 (this
"Seller's Warranty Certificate"), is executed and delivered by Union Capital
Investments, LLC (the "Seller"), in favor of Column Financial, Inc. ("Column"),
its successors and assigns.
PRELIMINARY STATEMENT
The Seller and Column are parties to a Master Mortgage Loan Purchase
Agreement dated as of February 1, 1999 (the "Master Purchase Agreement"). The
mortgage loans (the "Mortgage Loans") identified on the Mortgage Loan Schedule
attached as Schedule 1 hereto have been previously sold by the Seller to Column
pursuant to the Master Purchase Agreement. Column intends to transfer the
Mortgage Loans to DLJ Commercial Mortgage Corp. (the "Depositor"), pursuant to a
Mortgage Loan Purchase Agreement (the "Column - Depositor Agreement"); and the
Depositor intends to deposit the Mortgage Loans into a trust fund to be
evidenced by the Depositor's Commercial Mortgage Pass-Through Certificates,
Series 2000-CF1 (the "Certificates"). The Certificates will be issued on or
about June 26, 2000 (the actual date of issuance, the "Closing Date") pursuant
to a Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to
be dated on or about June 1, 2000, among the Depositor, Midland Loan Services,
Inc., as master servicer (the "Master Servicer"), GMAC Commercial Mortgage
Corporation, as special servicer (the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (in such capacity, the "Trustee").
The Seller agreed in the Master Purchase Agreement to make certain
representations and warranties with respect to the Mortgage Loans, repurchase
Mortgage Loans under certain circumstances and provide certain indemnification
in connection with any sale of the Mortgage Loans to a trust fund to be formed
as part of a mortgage pass-through transaction, and such agreement was partial
consideration for the execution and performance of the Master Purchase Agreement
by Column. Capitalized terms used but not defined herein shall have the
respective meanings assigned to such terms in the Master Purchase Agreement or,
if not defined in the Master Purchase Agreement, shall have the respective
meanings assigned to such terms in the Pooling and Servicing Agreement.
Pursuant to the terms of the Column - Depositor Agreement, Column shall
assign to the Depositor, among other things, all of Column's right, title and
interest in and to the Mortgage Loans and under this Seller's Warranty
Certificate (except under Section 4 hereof); and, pursuant to the Pooling and
Servicing Agreement, the Depositor shall assign to the Trustee, for the benefit
of the holders of the Certificates (the "Certificateholders"), among other
things, all of the Depositor's right, title and interest in and to the Mortgage
Loans and, as assignee, under this Seller's Warranty Certificate.
SECTION 1. Delivery of Mortgage Files. The Seller agrees that it shall
deliver to the Trustee as assignee of the Depositor (or, if so directed by
Column, to a custodian appointed by the Trustee (a "Custodian"), under the
Pooling and Servicing Agreement, all of the documents required in
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the Mortgage Files, at the times and in the manner otherwise required by the
Pooling and Servicing Agreement, in each case to the extent the Seller has not
delivered such documents to Column prior to the date hereof.
SECTION 2. Representations and Warranties of the Seller. Pursuant to
Section 7.01 of the Master Purchase Agreement, the Seller hereby represents and
warrants, as of the Closing Date, to and for the benefit of Column, the
Depositor, their affiliates, the Trustee and the Certificateholders, that (a)
each of the representations and warranties set forth in Sections 4.01 and 4.02
of the Master Purchase Agreement is true and correct as if stated and made on
the Closing Date and (b) each Mortgage Loan bears interest at a rate that
remains fixed throughout the term of such Mortgage Loan. The Seller agrees that
it shall be deemed to make as of the date of substitution with respect to any
Replacement Mortgage Loan (as defined in the Pooling and Servicing Agreement)
that is substituted by the Seller for a Mortgage Loan in the manner set forth in
Section 3 hereof, to and for the benefit of Column, the Depositor, their
affiliates, the Trustee and the Certificateholders, each of the representations
and warranties set forth in Sections 4.01 and 4.02 of the Master Purchase
Agreement as if stated and made on the date of substitution, with any conforming
changes necessary due to the fact that such Replacement Mortgage Loan was not
purchased pursuant to the Master Purchase Agreement.
SECTION 3. Cure, Repurchase, Substitution and Indemnity Obligations of the
Seller. Each of the representations and warranties made pursuant to Section 2
shall survive the transfer of the Mortgage Loans by Column to the Depositor and
by the Depositor to the Trustee, for the benefit of the Certificateholders, and
shall inure to the benefit of Column and its successors and assigns (the
holder(s) of any Mortgage Loan or related REO Property, including, without
limitation, the Trustee for the benefit of the Certificateholders, being herein
referred to as the "Owner" thereof), notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or assignment of Mortgage or
Column's, the Depositor's or the Trustee's examination of any Mortgage File.
Upon discovery by either the Seller or the related Owner of a breach of any of
the representations and warranties made pursuant to Section 2 that materially
and adversely affects the value of any Mortgage Loan or related REO Property or
the interest of the related Owner therein (any such breach, a "Material
Breach"), the party discovering such breach shall give prompt written notice to
the other.
Within sixty (60) days of the earlier of either discovery by or notice to
the Seller of any Material Breach (other than a Material Breach involving any
representation or warranty made pursuant to Section 2 hereof that is set forth
in Section 4.01 of the Master Purchase Agreement), the Seller shall use its best
efforts to cure such Material Breach in all material respects and, if such
Material Breach cannot be cured within such 60-day period, the Seller shall
repurchase the affected Mortgage Loan or REO Property at the Purchase Price (as
defined in the Pooling and Servicing Agreement); provided, however, that if the
Seller's obligation to repurchase such affected Mortgage Loan or REO Property as
described above arises within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date, if the
affected Mortgage Loan or REO Property is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), and if the affected Mortgage Loan or REO Property is then subject
to the Pooling and Servicing Agreement and is not a Mortgage Loan that (or an
REO Property related to a Mortgage Loan that) had been substituted for another
Mortgage Loan in the manner described hereinbelow, the Seller may, at its
option, in lieu of repurchasing such affected Mortgage Loan (but in any event no
later than such repurchase would have been required to be completed), (a)
replace such
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affected Mortgage Loan or REO Property with one or more Qualifying Substitute
Mortgage Loans (as defined in the Pooling and Servicing Agreement) that are
approved by Column and pay any corresponding Substitution Shortfall Amount (as
defined in the Pooling and Servicing Agreement), such substitution and payment
to be effected in accordance with the terms of the Pooling and Servicing
Agreement, and (b) deliver a certification to the Trustee to the effect that
such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" in the Pooling and Servicing Agreement.
The Seller may request that the related Owner extend the 60-day period
referenced above within which the Seller must cure, repurchase or replace a
Mortgage Loan or REO Property affected by such a Material Breach, to ninety (90)
or more days (but not more than one hundred fifty (150) days) following the
earlier of either discovery by or notice to the Seller of such Material Breach,
by delivering a written request to the related Owner, together with evidence
that the Seller is diligently proceeding to cure such breach and will require
the requested extension to effect such cure; provided, however, that the related
Owner may determine to accept or deny any such request in its sole discretion,
without limitation. For purposes of this section, no such request shall be
deemed to have been accepted by the related Owner unless the related Owner has
affirmatively and expressly stated in writing its acceptance of such request. If
a Material Breach involves any representation or warranty made pursuant to
Section 2 hereof that is set forth in Section 4.01 of the Master Purchase
Agreement and such Material Breach cannot be cured within ninety (90) days of
the earlier of either discovery by or notice to the Seller of such Material
Breach, any or all of the Mortgage Loans and related REO Properties shall, at
the option of the related Owner, be repurchased by the Seller at the Purchase
Price (with no option to substitute). Any repurchase of Mortgage Loans or REO
Properties or payment of any Substitution Shortfall Amount pursuant to the
foregoing provisions of this Section 3 shall be accomplished by wire transfer of
immediately available funds in the amount of the Purchase Price or Substitution
Shortfall Amount, as applicable, pursuant to wiring instructions furnished by
the related Owner to the Seller.
At the time of the repurchase or replacement of any Mortgage Loan or REO
Property as contemplated by the preceding paragraph, the related Owner and
Seller shall arrange for the reassignment of such Mortgage Loan or the
conveyance of such REO Property, as the case may be, to the Seller and the
delivery to the Seller of any documents held by or on behalf of the related
Owner relating to such Mortgage Loan or REO Property, as the case may be. With
respect to each Mortgage Loan and REO Property to be repurchased or replaced as
contemplated by the preceding paragraph, at the time the Purchase Price or
Substitution Shortfall Amount, as applicable, is wire transferred to or at the
direction of the related Owner, the Seller shall, simultaneously with the
initiation of such wire transfer, give written notice to the related Owner that
such wire transfer has been initiated.
In addition to such cure and repurchase or substitution obligation, the
Seller shall indemnify the related Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses incurred in
connection with any claim, demand, defense, or assertion based on or grounded
upon, or resulting from, a breach by the Seller of the representations and
warranties made pursuant to Section 2 hereof. The obligations of the Seller set
forth in this Section 3 to cure or to repurchase or replace a defective Mortgage
Loan or REO Property and to indemnify the related Owner as provided in this
Section 3 constitute the sole remedies of the related Owner respecting a breach
of such representations and warranties made pursuant to Section 2 hereof.
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SECTION 4. Indemnification. (a) The Seller will indemnify and hold
harmless, Column, its affiliates, and each Person, if any, who controls Column
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"; and all of the foregoing Persons, collectively, the "DLJ Parties"),
against any losses, claims, damages or liabilities to which they may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (each, a "Liability")
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact provided by the Seller to any DLJ Party ("Seller
Information") which is contained in the prospectus, private placement memorandum
and/or other disclosure document or any amendment or supplement thereto (each,
an "Offering Document") relating to the offering of any securities evidencing
ownership interests in the Mortgage Loans or which arise out of or are based
upon any omission or alleged omission to state in such Offering Document a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and will reimburse each DLJ Party for any legal or other expenses
reasonably incurred by such DLJ Party in connection with investigating or
defending any such Liability; provided, however, that the Seller shall not be
liable in any such case to the extent and only to the extent that any Liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in an Offering Document in reliance upon
and in conformity with information provided by or on behalf of any Person other
than the Seller. Column hereby agrees to indemnify the Seller for any Liability
arising out of or based upon Seller Information which is not accurately
reflected in any Offering Document.
(b) Promptly after receipt by a party with a right to indemnification under
this section (an "Indemnified Party"), of notice of the commencement of any
action, such Indemnified Party will, if a claim in respect thereof is to be made
against a party with an indemnification obligation under this section (the
"Indemnifying Party"), notify the Indemnifying Party of the commencement
thereof; but the omission so to notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability which it may have to any Indemnified
Party otherwise than under this section. In case any such action is brought
against an Indemnified Party, and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
Indemnified Party promptly after receiving the aforesaid notice from such
Indemnified Party, to assume the defense thereof, with counsel satisfactory to
such Indemnified Party; provided, however, that, if the defendants in any such
action include both the Indemnified Party and the Indemnifying Party, and if the
Indemnified Party shall have reasonably considered that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the Indemnifying Party, the Indemnified
Party or Parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party or Parties. Upon receipt of notice by such
Indemnified Party of the Indemnifying Party's election to so assume the defense
of such action and approval by such Indemnified Party of counsel, the
Indemnifying Party will not be liable to such Indemnified Party under this
section for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Indemnifying Party shall not be
liable for the expenses of more than one separate counsel), (ii) the
Indemnifying Party shall not have employed counsel satisfactory to the
Indemnified Party within a reasonable period after notice of commencement of the
action or (iii) the Indemnifying Party has authorized the employment of counsel
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for the Indemnified Party at the expense of the Indemnifying Party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in clause (i) or (iii).
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection (a) of
this Section 4 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Seller on the one hand, and Column on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Seller and Column in such proportions that Column is responsible for its pro
rata portion of such losses, liabilities, claims, damages and expenses
determined in accordance with the ratio that the (i) difference between the
aggregate purchase price paid to the Seller by Column for the Mortgage Loans and
the aggregate resale price received by Column, bears to (ii) the aggregate
resale price received by Column, and the Seller shall be responsible for the
balance; provided, however, that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this section, each of the other
DLJ Parties shall have the same rights to contribution as Column.
SECTION 5. Assignment of this Seller's Warranty Certificate. The rights and
obligations of the Seller under this Seller's Warranty Certificate may not be
assigned, pledged or hypothecated by the Seller without the consent of Column
and its successors and assigns; except that any Person into which the Seller may
be merged or consolidated, or any Person resulting from any merger, conversion
or consolidation to which the Seller shall be a party, or any Person succeeding
to the business of the Seller, shall be the successor of the Seller hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. The
rights and obligations of Column under this Seller's Warranty Certificate may,
however, be assigned in whole or in part by Column and its successors and
assigns in connection with any transfer of one or more Mortgage Loans. Without
limiting the generality of the foregoing, the Seller hereby acknowledges and
approves the assignments contemplated in the Preliminary Statement hereto.
SECTION 6. Seller's Warranty Certificate Supersedes Contrary Provisions in
Master Purchase Agreement. This Seller's Warranty Certificate supersedes any
contrary provisions of the Master Purchase Agreement, and constitutes an
amendment of such contrary provisions, insofar as (but only insofar as) such
contrary provisions of the Master Purchase Agreement relate to the Mortgage
Loans. The rights and obligations of the Seller and Column under the Master
Purchase Agreement are otherwise unaffected, and the provisions of the Master
Purchase Agreement otherwise remain in full force and effect.
SECTION 7. Description of the Seller. In connection with the offering of
the Certificates pursuant to the Offering Documents, the Seller authorizes the
inclusion in the Offering Documents of the description of the Seller, attached
as Exhibit A hereto, and hereby represents and warrants that such description
does not contain any material misstatements of fact.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Seller has caused its name to be signed by its
duly authorized officer as of the date first above written.
UNION CAPITAL INVESTMENTS, LLC
By:
---------------------------
Name:
Title:
Acknowledged and Accepted:
COLUMN FINANCIAL, INC.
By:
-----------------------------
Name:
Title:
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EXHIBIT A
Union Capital Investments LLC. Union Capital Investments LLC is a limited
liability company, with its principal office in Atlanta, Georgia. Union Capital
is primarily involved in conduit lending. It originates, underwrites and closes
first mortgage loans secured by all types of multifamily rental and commercial
real estate throughout the United States. The principals of Union Capital have
been involved in the conduit lending field since January 1993.
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<TABLE>
<CAPTION>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN CUT-OFF
NUMBER PROPERTY NAME DATE BALANCE
------------- ------------- ------------
<S> <C> <C>
13 ROYAL COACHMAN RESORT (1A) 13,170,229
14 PARADISE PARK RESORT (1A) 4,723,289
15 VACATION VILLAGE TRAVEL RESORT (1A) 2,199,203
17 VILLAGE OF THE FOUR SEASONS MOBILE HOME PARK (1B) 11,130,000
18 PARQUE LA QUINTA MOBILE HOME PARK (1B) 3,700,000
19 LAS PALMAS MOBILE HOME PARK (1B) 2,800,000
46 The Park 5,187,846
53 Sierra Mobile Estates 3,790,032
69 Pecan Valley Manufactured Housing Community 2,099,274
88 1045 Sheridan Street 1,474,023
114 National Mobile Home Park 619,318
(1A) THE UNDERLYING MORTGAGE LOANS SECURED BY ROYAL
COACHMAN RESORT, PARADISE PARK RESORT AND VACATION
VILLAGE TRAVEL RESORT ARE CROSS-COLLATERALIZED AND
CROSS-DEFAULTED, RESPECTIVELY.
(1B) THE UNDERLYING MORTGAGE LOANS SECURED BY VILLAGE OF
THE FOUR SEASONS MOBILE HOME PARK, PARQUE LA QUINTA
MOBILE HOME PARK AND LAS PALMAS MOBILE HOME PARK ARE
CROSS-COLLATERALIZED AND CROSS-DEFAULTED,
RESPECTIVELY.
</TABLE>
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EXHIBIT O
SCHEDULE OF DESIGNATED SUB-SERVICERS
O-1
