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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
CAPMARK SERVICES, L.P.,
Servicer
NATIONAL CONSUMER COOPERATIVE BANK,
Servicer and Special Servicer
LENNAR PARTNERS, INC.,
Special Servicer
WELLS FARGO BANK MINNESOTA, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of July 11, 2000
$1,111,999,815
Commercial Mortgage Pass-Through Certificates
Series 2000-C1
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<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
Section 1.02 Certain Calculations..........................................
Section 1.03 Loan Identification Convention................................
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Loans...........................................
Section 2.02 Acceptance by Trustee.........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase of Loans by the Mortgage Loan
Sellers, FINOVA, FINOVA Capital and Llama for Defects in
Mortgage Files and Breaches of Representations and
Warranties....................................................
Section 2.04 Execution of Certificates.....................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Loans.................
Section 3.02 Collection of Loan Payments...................................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts............................................
Section 3.04 The Collection Account, Distribution Accounts and Excess
Interest Distribution Account.................................
Section 3.05 Permitted Withdrawals from the Collection Account and the
Distribution Accounts.........................................
Section 3.06 Investment of Funds in the Collection Account, Servicing
Accounts, Cash Collateral Accounts, Lock-Box Accounts,
the Interest Reserve Account and the REO Account..............
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.........................................
Section 3.08 Enforcement of Due-On-Sale and Due-On-Encumbrance
Clauses; Assumption Agreements; Defeasance Provisions.........
Section 3.09 Realization upon Defaulted Loans..............................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files...............
Section 3.11 Servicing Compensation........................................
Section 3.12 Reports to the Trustee; Collection Account Statements.........
Section 3.13 Annual Statement as to Compliance.............................
Section 3.14 Reports by Independent Public Accountants.....................
Section 3.15 Access to Certain Information.................................
Section 3.16 Title to REO Property; REO Account............................
Section 3.17 Management of REO Property....................................
Section 3.18 Sale of Defaulted Loans and REO Properties....................
Section 3.19 Additional Obligations of the Servicer and Special
Servicer; Inspections; Appraisals.............................
Section 3.20 Modifications, Waivers, Amendments and Consents...............
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.................
Section 3.22 Sub-Servicing Agreements......................................
Section 3.23 Representations, Warranties and Covenants of Each
Servicer......................................................
Section 3.24 Representations, Warranties and Covenants of Each Special
Servicer......................................................
Section 3.25 Servicing of the L'Enfant Mortgage Loan, the Crystal
Pavilion/Petry Building Mortgage Loan and the 1211 Avenue
of the Americas Mortgage Loan.................................
Section 3.26 Limitation on Liability of the Directing
Certificateholder.............................................
Section 3.27 Reports to the Securities and Exchange Commission;
Available Information.........................................
Section 3.28 Lock-Box Accounts and Servicing Accounts......................
Section 3.29 Interest Reserve Account......................................
Section 3.30 Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Loans................
Section 3.31 REMIC Administration..........................................
Section 3.32 Servicer and Special Servicer May Own Certificates............
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.................................................
Section 4.02 Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others.........
Section 4.03 P&I Advances..................................................
Section 4.04 Allocation of Collateral Support Deficit......................
Section 4.05 Appraisal Reductions..........................................
Section 4.06 Certificate Deferred Interest.................................
Section 4.07 Grantor Trust Reporting.......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Registration of Transfer and Exchange of Certificates.........
Section 5.03 Book-Entry Certificates.......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 5.05 Persons Deemed Owners.........................................
Section 5.06 Access to Certificateholders' Names and Addresses.............
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Servicer and the Special
Servicer......................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer..............................
Section 6.03 Limitation on Liability of the Trustee, the Depositor,
the Servicer, the Special Servicer and Others.................
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign........
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer..........................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination...................................................
Section 7.02 Trustee to Act; Appointment of Successor......................
Section 7.03 Notification to Certificateholders............................
Section 7.04 Waiver of Events of Default...................................
Section 7.05 Trustee Advances..............................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.............................................
Section 8.02 Certain Matters Affecting the Trustee.........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.........................................
Section 8.04 Trustee May Own Certificates..................................
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee......
Section 8.06 Eligibility Requirements for Trustee..........................
Section 8.07 Resignation and Removal of the Trustee........................
Section 8.08 Successor Trustee.............................................
Section 8.09 Merger or Consolidation of Trustee............................
Section 8.10 Appointment of Co-Trustee or Separate Trustee.................
Section 8.11 [Reserved]....................................................
Section 8.12 Access to Certain Information.................................
Section 8.13 Representations, Warranties and Covenants of the Trustee......
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
Section 9.01 Termination Upon Repurchase or Liquidation of All Loans.......
Section 9.02 Additional Termination Requirements...........................
Section 9.03 Purchase of ARD Loans.........................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.....................................................
Section 10.02 Recordation of Agreement; Counterparts........................
Section 10.03 Limitation on Rights of Certificateholders....................
Section 10.04 Governing Law.................................................
Section 10.05 Notices.......................................................
Section 10.06 Severability of Provisions....................................
Section 10.07 Grant of a Security Interest..................................
Section 10.08 Successors and Assigns; Beneficiaries.........................
Section 10.09 Article and Section Headings..................................
Section 10.10 Notices to Rating Agencies....................................
EXHIBITS
A-1 Form of Class A Certificate
A-2 Form of Class A-X Certificate
A-3 Form of Class B Certificate
A-4 Form of Class C and Class D Certificate
A-5 Form of Class E, Class F, Class G, Class H and Class J
Global Certificate
A-6 Form of Class K, Class L, Class M and Class N Definitive
Certificate
A-7 Form of Class V-1 and Class V-2 Certificate
A-8 Form of Residual Certificate
B Mortgage Loan Schedule
C-1 Form of QIB Investment Representation Letter - Qualified
Institutional Buyer
C-2 Form of Regulation S Investment Representation Letter -
Non-U.S. Person
C-3 Form of Investment Representation Letter - Institutional
Accredited Investor
D-1 Form of Transfer Affidavit
D-2 Form of Transferor Letter
E List of Mezzanine Loans
F Form of Request for Release
G-1 Form of Comparative Financial Status Report
G-2 Form of Delinquent Loan Status Report
G-3 Form of Historical Loan Modification Report
G-4 Form of Historical Loss Estimation Report
G-5 Form of REO Status Report
G-6 Form of Servicer Watch List
G-7 Form of Operating Statement Analysis Report
G-8 Form of NOI Adjustment Worksheet
G-9 Form of Loan Set-Up File
G-10 Form of Loan Periodic Update File
G-11 Form of Property File
G-12 Form of Bond Level File
G-13 Form of Collateral Summary File
H Form of Affidavit of Lost Note
I Investor Certification
J Underwritten Debt Service Coverage Ratios
K Form of NCCB Subordination Agreement
L Form of Report Regarding Advances
<PAGE>
This Pooling and Servicing Agreement (the "Agreement"), is dated as
of July 11, 2000, among Credit Suisse First Boston Mortgage Securities Corp., as
Depositor, CAPMARK SERVICES, L.P., as Pool I Servicer, NATIONAL CONSUMER
COOPERATIVE BANK, as Pool II Servicer and Pool II Special Servicer, LENNAR
PARTNERS, INC., as Pool I Special Servicer, and WELLS FARGO BANK MINNESOTA,
N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust") to be
created hereunder, the primary assets of which will be a pool of 211 multifamily
and commercial mortgage loans listed on Exhibit B hereto. As provided herein,
the Trustee shall elect or shall cause an election to be made that each of the
Upper-Tier REMIC and the Lower-Tier REMIC (as defined herein) be treated for
federal income tax purposes as a "real estate mortgage investment conduit" (a
"REMIC"). The Excess Interest and the Excess Interest Distribution Account shall
not be assets of either REMIC but shall be treated as a grantor trust under
Subpart E, Part I of Subchapter J of the Code.
<PAGE>
The following table sets forth the designation, the initial
pass-through rate (the "Pass-Through Rate"), the aggregate initial principal
amount (the "Original Certificate Balance") or notional balance ("Original
Notional Balance"), as applicable, and the initial ratings given each Class (as
indicated below) by the Rating Agencies (as defined herein) for each Class of
certificates comprising the interests in the Upper-Tier REMIC created hereunder:
UPPER-TIER REMIC
Original
Certificate
Balance (or, in
the case of the
Class A-X
Certificates, Initial
Class Original Notional Ratings(1)
Designation Pass-Through Rate Balance) Fitch/S&P
------------------- ----------------- ----------------- ----------------
Class A-1 7.325% $184,200,000 AAA/AAA
Class A-2 7.545% $677,500,000 AAA/AAA
Class A-X (2) $1,111,999,815(3) AAA/AAA
Class B (4) $50,100,000 AA/AA
Class C (5) $44,500,000 A/A
Class D (6) $15,300,000 A-/A-
Class E (7) $29,100,000 BBB/BBB
Class F (7) $13,900,000 BBB-/BBB-
Class G (8) $30,600,000 BB+/BB+
Class H (8) $12,500,000 BB/BB
Class J (8) $9,800,000 BB-/BB-
Class K (8) $11,100,000 B+/B+
Class L (8) $9,700,000 B/B
Class M (8) $8,400,000 B-/NR
Class N (8) $15,299,815 NR/NR
Class R None(9) None(9)
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(1) The Certificates marked "NR" have not been rated by the applicable Rating
Agency.
(2) The Class A-X Pass-Through Rate, as defined herein.
(3) Original Notional Balance. The Class A-X Certificates will not have a
Certificate Balance and will not be entitled to receive distributions
of principal.
(4) Weighted Average Net Mortgage Rate (as defined herein) minus 0.535%.
(5) Weighted Average Net Mortgage Rate minus 0.390%.
(6) Weighted Average Net Mortgage Rate minus 0.273%.
(7) Weighted Average Net Mortgage Rate.
(8) The lesser of 7.325% and the Weighted Average Net Mortgage Rate.
(9) The Class R Certificates will not have a Certificate Balance or
notional balance, do not bear interest and will not be entitled to
distributions of Prepayment Premiums or Yield Maintenance Charges. Any
Available Distribution Amount remaining in the Upper-Tier Distribution
Account after all required distributions under this Agreement have been
made to each other Class of Certificates will be distributed to the
Holders of the Class R Certificates.
The Class A-1, Class A-2, Class A-X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class
N Certificates will evidence "regular interests" in the Upper-Tier REMIC created
hereunder. The sole Class of "residual interests" in the Upper-Tier REMIC
created hereunder will be evidenced by the Class R Certificates. As provided
herein, the Trustee will elect to treat the segregated pool of assets consisting
of the Loans and certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as one "Lower-Tier REMIC." The Class LA-1, Class LA-2, Class LB,
Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK,
Class LL, Class LM and Class LN Uncertificated Interests will evidence "regular
interests" in the Lower-Tier REMIC (the "Lower-Tier REMIC Regular Interests")
created hereunder. The sole Class of "residual interests" in the Lower-Tier
REMIC created hereunder will be evidenced by the Class LR Certificates.
The following table sets forth the initial Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests:
LOWER-TIER REMIC
Original Lower-Tier
Class Interest Rate Principal
------------------------ ------------------------ ------------------------
Class LA-1 (1) $184,200,000
Class LA-2 (1) $677,500,000
Class LB (1) $50,100,000
Class LC (1) $44,500,000
Class LD (1) $15,300,000
Class LE (1) $29,100,000
Class LF (1) $13,900,000
Class LG (1) $30,600,000
Class LH (1) $12,500,000
Class LJ (1) $9,800,000
Class LK (1) $11,100,000
Class LL (1) $9,700,000
Class LM (1) $8,400,000
Class LN (1) $15,299,815
Class LR None(2)
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(1) The interest rate of each of the indicated Classes of Uncertificated
Lower-Tier Interests is the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or notional
balance, do not bear interest and will not be entitled to distributions of
Prepayment Premiums or Yield Maintenance Charges. Any Available
Distribution Amount remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount on each Distribution Date
shall be distributed to the Holders of the Class LR Certificates.
The parties intend that (i) the portion of the Trust Fund
representing the Excess Interest and the Excess Interest Distribution Account
shall be treated as a grantor trust under Subpart E of Part 1 of Subchapter J of
Chapter 1 of Subtitle A of the Code and (ii) the Class V-1 and Class V-2
Certificates shall represent undivided beneficial interests in the portion of
the Trust Fund consisting of the Excess Interest and the Excess Interest
Distribution Account.
As of the close of business on the Cut-off Date (as defined herein),
the Loans had an aggregate principal balance, after application of all payments
of principal due on or before such date, whether or not received, equal to
$1,111,999,815.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicers, the Special Servicers and the Trustee agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
"1211 Avenue of the Americas Mortgage Loan": The Loan known as the
1211 Avenue of the Americas and identified as Loan Number 3 on the Mortgage Loan
Schedule.
"1211 Avenue of the Americas Intercreditor Agreement": That certain
Intercreditor Agreement, dated as of May 12, 2000, between Norwest Bank
Minnesota, National Association, as the holder of the retained 1211 Avenue of
the Americas Other Note, and the CSFB Mortgage Loan Seller, as the holder of the
1211 Avenue of the Americas Trust Fund Note.
"1211 Avenue of the Americas Other Note": With respect to the 1211
Avenue of the Americas Whole Loan, the other note which is secured by the
related Mortgaged Property and not included in the Trust Fund.
"1211 Avenue of the Americas Other Trust Fund": As defined in
Section 2.01(g).
"1211 Avenue of the Americas Servicer": BNY Asset Solutions, Inc. or
its successors or assigns as servicer of the 1211 Avenue of the Americas Whole
Loan.
"1211 Avenue of the Americas Servicing Agreement": That certain
Trust and Servicing Agreement, dated as of May 12, 2000, by and among the
Depositor, as depositor, the 1211 Avenue of the Americas Servicer, as servicer,
the 1211 Avenue of the Americas Special Servicer, as special servicer and
Norwest Bank Minnesota, National Association, as trustee.
"1211 Avenue of the Americas Special Servicer": ORIX Real Estate
Capital Markets, LLC, or its successors or assigns, as special servicer of the
1211 Avenue of the Americas Whole Loan.
"1211 Avenue of the Americas Subordinate Components": As defined in
Section 2.01(g).
"1211 Avenue of the Americas Trust Fund Note": The Trust Fund Note
relating to the 1211 Avenue of the Americas Mortgage Loan.
"1211 Avenue of the Americas Whole Loan": The loan evidenced by the
1211 Avenue of the Americas Trust Fund Note and the 1211 Avenue of the Americas
Other Note.
"Accountant's Statement": As defined in Section 3.14.
"Accrued Certificate Interest Amount": With respect to each
Distribution Date and each Class of Regular Certificates, an amount equal to
interest for the related Interest Accrual Period at the Pass-Through Rate
applicable to such Class of Certificates for such Distribution Date, accrued on
the related Certificate Balance of such Class (or, in the case of the Class A-X
Certificates, on the Notional Balance thereof) immediately prior to such
Distribution Date. The Accrued Certificate Interest Amount for each such Class
shall be calculated on the basis of a 360-day year composed of twelve 30-day
months.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund and
the Lower-Tier REMIC within the meaning of Treasury regulation Section
1.856-6(b)(1), which is the first day on which the Lower-Tier REMIC is treated
as the owner of such REO Property for federal income tax purposes.
"Actual/360 Loans": The Loans indicated by the term "Act/360" under
the column heading "Interest Calc." in the Mortgage Loan Schedule.
"Additional Collateral": With respect to each Additional Collateral
Loan, the cash reserve or irrevocable letter of credit partially securing such
Additional Collateral Loan.
"Additional Collateral Loan": Any one of the Loans known as
Amazon.com Building, Cedarmont Apartments, Emporium Shoppes, Gentry Portfolio,
Avenue of the Arts, Ashley Club Apartments, Central Park Plaza Shopping Center
and Columbus Square Shopping Center and designated as Loan Nos. 12, 121, 82, 11,
13, 116, 27 and 86, respectively, on the Mortgage Loan Schedule.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 3.31(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(g)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 3.13 hereof and the Accountant's
Statement.
"Annual Debt Service": For any Loan the annualized Monthly Payment
on such Loan.
"Anticipated Repayment Date": With respect to any ARD Loan,
designated as such on the Mortgage Loan Schedule, the date upon which such ARD
Loan starts to accrue interest at its Revised Rate.
"Appraisal": An appraisal prepared in accordance with 12 C.F.R.
ss.225.64 by an Appraiser selected by the Servicer or Special Servicer, as
applicable.
"Appraisal Reduction": For any Distribution Date and for any Loan
(other than the 1211 Avenue of the Americas Mortgage Loan) as to which an
Appraisal Reduction Event has occurred, an amount calculated by the Special
Servicer equal to the excess, if any, of (a) the Stated Principal Balance of
such Loan over (b) the excess of (i)(A) 90% of the Appraised Value of the
related Mortgaged Property (or, with respect to the L'Enfant Mortgage Loan, the
pro rata portion of the related Mortgaged Property allocable thereto and with
respect to the Crystal Pavilion/Petry Building Mortgage Loan, an amount equal to
90% of the product of (I) the Appraised Value of the related Mortgaged Property
and (II) a fraction, the numerator of which is the then current balance of the
Crystal Pavilion/Petry Building Trust Fund Note and the denominator of which is
the aggregate of the then current balance of the Crystal Pavilion/Petry Building
Other Notes and the Crystal Pavilion Trust Fund Note) as determined (1) with
respect to any Loan with an outstanding principal balance equal to or greater
than $2,000,000, by one or more Appraisals (the costs of which shall be paid by
the applicable Servicer required to service such Loan as a Servicing Advance) or
(2) with respect to any Loan with an outstanding principal balance less than
$2,000,000, by an Appraisal (or an update of a prior Appraisal) or an internal
valuation performed by the Special Servicer plus (B) any letter of credit,
reserve, escrow or similar amount held by the applicable Servicer which may be
applied to payments on the Loan over (ii) the sum of (X) to the extent not
previously advanced by the Servicer or the Trustee, all unpaid interest on such
Loan at a per annum rate equal to its Mortgage Rate, (Y) all unreimbursed
Advances in respect of such Loan together with interest thereon at the
Reimbursement Rate and (Z) all currently due and unpaid real estate taxes and
assessments, Insurance Policy premiums, ground rents and all other amounts due
and unpaid with respect to such Loan, net of any amounts currently escrowed for
such amounts (which taxes, assessments, premiums, ground rents and other amounts
have not been subject to an Advance by the Servicer or the Trustee and/or for
which funds have not been escrowed). The Appraisal Reduction for the 1211 Avenue
of the Americas Mortgage Loan shall be determined pursuant to the 1211 Avenue of
the Americas Servicing Agreement.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Loan or the related REO Property will be
reduced to zero as of the date such Loan is paid in full, liquidated,
repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date
and any Loan for which an Appraisal Reduction has been calculated, an amount
equal to the product of (i) the Reduction Rate for such Distribution Date and
(ii) the Appraisal Reduction with respect to such Loan.
"Appraisal Reduction Event": With respect to any Loan (other than
the 1211 Avenue of the Americas Mortgage Loan), the earliest of (i) the third
anniversary of the date on which the first extension of the Maturity Date of
such Loan becomes effective as a result of a modification of such Loan by the
Special Servicer pursuant to the terms hereof, which extension does not decrease
the aggregate amount of Monthly Payments on the Loan, (ii) 120 days after an
uncured delinquency (without regard to the application of any grace period)
occurs in respect of such Loan, (iii) the date on which a reduction in the
amount of Monthly Payments on such Loan, or a change in any other material
economic term of such Loan (other than an extension of the Maturity Date),
becomes effective as a result of a modification of such Loan by the Special
Servicer, (iv) 60 days after a receiver has been appointed for the Mortgagor of
the related Mortgaged Property, (v) 30 days after a Mortgagor declares
bankruptcy; (vi) 60 days after the borrower has become the subject of a decree
or order for a bankruptcy proceeding that shall have remained in force
undischarged and unstayed, and (vii) immediately after a Loan becomes an REO
Loan; provided, however, that an Appraisal Reduction Event shall not be deemed
to occur at any time on and after the dates when the aggregate Certificate
Balances of all Classes of Certificates (other than the Class A Certificates)
have been reduced to zero. The Special Servicer shall notify the Servicer
promptly upon the occurrence of any of the foregoing events. With respect to the
1211 Avenue of the Americas Mortgage Loan, an Appraisal Reduction Event will
occur on the earliest date on which (i) the 1211 Avenue of the Americas Whole
Loan is 90 days delinquent in respect of any monthly payment amount, (ii) the
related Mortgaged Property is acquired on behalf of the 1211 Avenue of the
Americas Trust Fund, (iii) the 1211 Avenue of the Americas Whole Loan has been
modified to reduce the amount of any monthly payment amount, (iv) a receiver is
appointed and continues in such capacity in respect of the related Mortgaged
Property for at least 30 days, (v) the related mortgagor is subject to any
bankruptcy, insolvency or similar proceeding or (vi) the 1211 Avenue of the
Americas Whole Loan is due and has not been paid on its Final Maturity Date.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal.
"Appraiser": An Independent nationally recognized MAI, state
certified organization with five years of experience in properties of like kind
and in the same geographic area.
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
Schedule.
"Asset Status Report": As defined in Section 3.21(e).
"Assignable Primary Servicing Fee": Any Primary Servicing Fee that
is payable to the Servicer pursuant to Section 3.11(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument, executed by the
related Mortgagor, assigning to the related mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Loan that is delinquent in respect of its Balloon Payment (including any REO
Loan as to which the Balloon Payment would have been past due), an amount equal
to the sum of (a) the principal portion of the Monthly Payment that would have
been due on such Loan on the related Due Date based on the constant payment
required by the related Note or the original amortization schedule thereof (as
calculated with interest at the related Mortgage Rate), if applicable, assuming
such Balloon Payment had not become due, after giving effect to any modification
of such Loan, and (b) interest on the Stated Principal Balance of such Loan at
the applicable Net Mortgage Rate (less the Servicing Fee Rate).
"Authenticating Agent": Wells Fargo Bank Minnesota, N.A., a national
banking association, or any agent of the Trustee appointed to act as
Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Loans (and any related REO
Properties) and on deposit in the Collection Account as of the close of business
on the Business Day preceding the related Servicer Remittance Date, exclusive of
the following amounts:
(i) all Monthly Payments collected but due on a Due Date after
the end of the related Due Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds or Insurance and Condemnation Proceeds, all amounts paid in
connection with Loan repurchases pursuant to Section 2.03(b), and all
other unscheduled recoveries received or deemed received after the related
Determination Date;
(iii) all amounts in the Collection Account that are payable or
reimbursable to any Person from such account pursuant to clauses (ii)
through (xvii), inclusive, of Section 3.05(a);
(iv) all amounts that are payable or reimbursable to any Person
pursuant to clauses (ii) through (iv), inclusive, of Section 3.05(b);
(v) all Prepayment Premiums and Yield Maintenance Charges;
(vi) all amounts deposited in the Collection Account in error;
(vii) any net interest or net investment income on funds on
deposit in the Collection Account, the Interest Reserve Account, any Cash
Collateral Account, any Lock-Box Account, any Reserve Account or any REO
Account or in Permitted Investments in which such funds may be invested;
(viii) with respect to those Loans that are Actual/360 Loans and
any Distribution Date relating to each Interest Accrual Period ending in
each February or in any January in a year which is not a leap year, an
amount equal to one day of interest on the Stated Principal Balance of
such Loans as of the Distribution Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage Rates to the
extent such amount is to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.30; and
(ix) Excess Interest;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred with respect to the Loans from the REO Account
to the Collection Account for such Distribution Date pursuant to Section
3.16(c);
(c) the aggregate amount of any P&I Advances made in respect of the
Loans by the Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (which P&I Advances shall not include any
related Servicing Fees, Primary Servicing Fees or Workout Fees); and
(d) all funds released from the Interest Reserve Account for
distribution on such Distribution Date.
"Balloon Loan": Any Loan that by its terms provides for an
amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Loan and any date of
determination, the scheduled payment of principal due on the Maturity Date of
such Loan (less principal included in the applicable amortization schedule or
scheduled Monthly Payment).
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Loan and any of the Class A-1, Class A-2, Class B, Class C, Class D,
Class E and Class F Certificates, a fraction (not greater than 1) (a) whose
numerator is the amount, if any, by which (i) the Pass-Through Rate on such
Class of Certificates exceeds (ii) the Yield Rate used in calculating the Yield
Maintenance Charge with respect to such Principal Prepayment and (b) whose
denominator is the amount, if any, by which the (i) Mortgage Rate on such Loan
exceeds (ii) the Yield Rate (as provided by the Servicer) used in calculating
the Yield Maintenance Charge with respect to such Principal Prepayment;
provided, however, that if such Yield Rate is greater than or equal to the
lesser of (x) the Mortgage Rate on such Loan and (y) the Pass-Through Rate
described in clause (a)(i) above, then the Base Interest Fraction shall be zero.
"Berkeley Fee": As defined in Section 3.30(e).
"Berkeley Lease": As defined in Section 3.30(e).
"Berkeley Tenant": As defined in Section 3.30(e).
"Berkeley Tower Mortgage Loan": As defined in Section 3.30(e).
"Bond Level File": A file prepared by the Trustee containing
substantially the information described in Exhibit G-12 hereto.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": With respect to any Loan, any obligor or obligors on any
related Note or Notes.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in the States of New York, Georgia, Maryland,
Minnesota and Florida are authorized or obligated by law or executive order to
remain closed.
"Business Hour": Any 60-minute interval between 9:00 a.m. and 5:00
p.m., in the related time zone, on any Business Day.
"Cash Collateral Account": With respect to any Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document, into which account or accounts the Lock-Box Account monies are swept
on a regular basis for the benefit of the Trustee as successor to the applicable
Mortgage Loan Seller's interest in the Loans. Any Cash Collateral Account shall
be beneficially owned for federal income tax purposes by the Person who is
entitled to receive all reinvestment income or gain thereon in accordance with
the terms and provisions of the related Loan and Section 3.06, which Person
shall be taxed on all reinvestment income or gain thereon. The Servicer shall be
permitted to make withdrawals therefrom solely for deposit into the Collection
Account or a Servicing Account, or to remit to Borrower as required by the
related loan documents, as applicable. To the extent not inconsistent with the
terms of the related Loan, each such Cash Collateral Account shall be an
Eligible Account.
"Cash Collateral Account Agreement": With respect to any Loan, the
cash collateral account agreement, if any, between the related Mortgage Loan
Originator and the related Borrower, pursuant to which the related Cash
Collateral Account, if any, may have been established.
"Clearstream": Clearstream Banking, societe anonyme (formerly known
as Cedelbank), a corporation organized under the laws of the Duchy of
Luxembourg.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-C1,
as executed, authenticated and delivered by the Trustee.
"Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class A-X Certificates), (i) on or prior to the
first Distribution Date, an amount equal to the Original Certificate Balance of
such Class as specified in the Preliminary Statement hereto, and (ii) as of any
date of determination after the first Distribution Date, the Certificate Balance
of such Class on the Distribution Date immediately prior to such date of
determination (determined as adjusted pursuant to Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement with respect to the rights, obligations or liabilities of the
Trustee, the Servicer or the Special Servicer, any Certificate registered in the
name of the Trustee, the Servicer, the Special Servicer or any Affiliate of any
of them shall be deemed not to be outstanding, and the Voting Rights to which it
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver has been obtained; provided that (i) such restrictions shall not apply to
the selection of the Controlling Class or the exercise of the Special Servicer's
or its Affiliates' rights as a member of the Controlling Class and (ii) the
foregoing shall not apply if the Trustee, the Servicer or the Special Servicer,
as the case may be, and/or their Affiliates, own the entire Class of each Class
of Certificates affected by such action, vote, consent or waiver. The Trustee
shall be entitled to request and conclusively rely upon a certificate of the
Servicer or the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates or Uncertificated Lower-Tier
Interests bearing the same alphabetical (and, if applicable, numerical) Class
designation.
"Class A Certificate": Any Class A-1 or Class A-2 Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": 7.325% per annum.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-2 Pass-Through Rate": 7.545% per annum.
"Class A-X Certificate": A Certificate designated as "Class A-X" on
the face thereof, in the form of Exhibit A-2 hereto.
"Class A-X Component" or "Component": Any one of the components set
forth under the definition of "Component Rate."
"Class A-X Pass-Through Rate": As to any Distribution Date, the per
annum rate, expressed as a percentage, obtained by dividing (i) the sum of the
products of (a) the Certificate Balance of each Class of Regular Certificates
(other than the Class A-X Certificates) and (b) the related Component Rate for
such Distribution Date by (ii) the sum of all such Certificate Balances.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-3 hereto.
"Class B Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date minus 0.535%.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class C Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date minus 0.390%.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class D Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date minus 0.273%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class E Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class F Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the Weighted Average Net Mortgage Rate for such Distribution
Date.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class G Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 7.325% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class H Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 7.325% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class J Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 7.325% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class K Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 7.325% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class L Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 7.325% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class LA-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LK Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LL Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LM Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LN Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-8 hereto.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class M Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 7.325% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class N Pass-Through Rate": As to any Distribution Date, a per
annum rate equal to the lesser of (i) 7.325% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-8 hereto.
"Class V-1 Certificate": A Certificate designated as "Class V-1" on
the face thereof, in the form of Exhibit A-7 hereto. The Class V-1 Certificates
have no Pass-Through Rate, Certificate Balance or Notional Balance.
"Class V-2 Certificate": A Certificate designated as "Class V-2" on
the face thereof, in the form of Exhibit A-7 hereto. The Class V-2 Certificates
have no Pass-Through Rate, Certificate Balance or Notional Balance.
"Closing Date": August 4, 2000.
"CMSA": Commercial Mortgage Securities Association.
"Co-Lender Agreement": Any of (i) the Co-Lender Agreement, dated as
of November 11, 1998, between The Chase Manhattan Bank, as trustee for the
Depositor's Commercial Mortgage Pass-Through Certificates, Series 1998-C2, and
the CSFB Mortgage Loan Seller, relating to the L'Enfant Trust Fund Note; (ii)
the 1211 Avenue of the Americas Intercreditor Agreement; or (iii) the Co-Lender
Agreement dated July 11, 2000 between the Trustee and the CSFB Mortgage Loan
Seller relating to the Crystal Pavilion/Petry Building Trust Fund Note.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Summary File": A file prepared by the Trustee containing
substantially the information described in Exhibit G-13 hereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Collection Account": One or more separate custodial accounts
created and maintained by each Servicer or any Sub-Servicer on behalf of such
Servicer pursuant to Section 3.04(a) in the name of the Trustee on behalf of the
Certificateholders, into which the amounts set forth in Section 3.04(a) shall be
deposited directly, which account shall be entitled "CapMark Services, L.P., in
trust for Wells Fargo Bank Minnesota, N.A., as Trustee for the benefit of
Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2000-C1, Collection Account," with
respect to the Loans other than the NCCB Loans, and "National Consumer
Cooperative Bank, in trust for Wells Fargo Bank Minnesota, N.A., as Trustee for
the benefit of Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2000-C1, Collection
Account," with respect to the NCCB Loans. Any such account or accounts shall be
an Eligible Account and shall be part of the Lower-Tier REMIC.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report in CMSA format
prepared by each Servicer (combining reports prepared by the Servicer and the
Special Servicer) containing substantially the information described in Exhibit
G-1 attached hereto, setting forth, among other things, the occupancy, revenue,
net operating income before capital items, and debt service coverage for each
Loan and related Mortgaged Property based on the most current financial
information received as of the Determination Date immediately preceding the
preparation of such report for each of the following three periods (to the
extent such information is available): (i) the most current available year to
date, (ii) the previous two full fiscal years and (iii) the "base year"
(representing the original analysis of information used as of the Cut-off Date).
For the purposes of the Servicer's production of any such report that is
required to state information for any period prior to the Cut-off Date, the
Servicer may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the related Mortgage Loan
Seller. For purposes of preparing the Comparative Financial Status Report for
NCCB Loans, debt service coverage will be based on Underwritten Net Cash Flow,
as such term applies to residential cooperative properties.
"Component Rate": As to each of the Class A-X Components, the rate
set forth below with respect thereto:
"Class LA-1 Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class A-1
Pass-Through Rate.
"Class LA-2 Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class A-2
Pass-Through Rate.
"Class LB Component": 0.535%.
"Class LC Component": 0.390%.
"Class LD Component": 0.273%.
"Class LE Component": Zero.
"Class LF Component": Zero.
"Class LG Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class G
Pass-Through Rate for such Distribution Date.
"Class LH Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class H
Pass-Through Rate for such Distribution Date.
"Class LJ Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class J
Pass-Through Rate for such Distribution Date.
"Class LK Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class K
Pass-Through Rate for such Distribution Date.
"Class LL Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class L
Pass-Through Rate.
"Class LM Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class M
Pass-Through Rate.
"Class LN Component": The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class N
Pass-Through Rate.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a
Certificate Balance at least equal to 25% of the initial Certificate Balance of
such Class (or, if no such Class exists, the most subordinate Class then
outstanding); provided, that for this purpose the Class M and Class N
Certificates shall be considered to be one Class. As of the Closing Date, the
Controlling Class shall be the Class M and Class N Certificates.
"Controlling Class Certificateholder": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562, Attention: Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-C1, and for
certificate transfer purposes at Sixth and Marquette, Minneapolis, Minnesota
55479-0113, Attention: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2000-C1.
"Corrected Loan": Any Specially Serviced Loan that has become
current and remained current for three consecutive Monthly Payments (for such
purposes taking into account any modification or amendment of such Loan) and as
to which Loan the Special Servicer has returned servicing to the Servicer
pursuant to Section 3.21(a).
"Credit File": Any documents, other than documents required to be
part of the related Mortgage File, in the possession of the Servicer and
relating to the origination and servicing of any Loan.
"Crossed Loan": Any Loan which is cross-defaulted and
cross-collateralized with any other Loan.
"Crystal Pavilion/Petry Building Co-Lender Agreement": The Crystal
Pavilion/Petry Building Co-Lender Agreement, dated as of the Cut-off Date,
between the Trustee, as the holder of the Crystal Pavilion/Petry Building Trust
Fund Note, and the CSFB Mortgage Loan Seller, as the holder of the Crystal
Pavilion/Petry Building Other Notes.
"Crystal Pavilion/Petry Building Intercreditor Agreement": That
certain Amended and Restated Intercreditor Agreement, dated as of July 11, 2000,
between the CSFB Mortgage Loan Seller, as first mortgage lender, and Capital
Trust, as mezzanine lender.
"Crystal Pavilion/Petry Building Mortgage Loan: The Loan known as
the Crystal Pavilion/Petry Building and identified as Loan Number 7 on the
Mortgage Loan Schedule.
"Crystal Pavilion/Petry Building Other Notes": With respect to the
Crystal Pavilion/Petry Building Mortgage Loan, the other three notes which are
secured by the related Mortgaged Property and not included in the Trust Fund.
"Crystal Pavilion/Petry Building Trust Fund Note": The Trust Fund
Note relating to the Crystal Pavilion/Petry Building Mortgage Loan.
"CSFB Loans": The Loans transferred to the Depositor pursuant to the
CSFB Mortgage Loan Purchase Agreement.
"CSFB Mortgage Loan Purchase Agreement": With respect to the CSFB
Loans, the agreement between the Depositor and the CSFB Mortgage Loan Seller,
dated as of July 11, 2000, relating to the transfer of all of the CSFB Mortgage
Loan Seller's right, title and interest in and to the CSFB Loans.
"CSFB Mortgage Loan Seller": Credit Suisse First Boston Mortgage
Capital LLC, a Delaware limited liability company, and its successors in
interest.
"Cut-off Date": July 11, 2000.
"Cut-off Date Principal Balance": With respect to any Loan, the
outstanding principal balance of such Loan as of the Cut-off Date, after
application of all payments of principal due on or before such date, whether or
not received.
"Debt Service Coverage Ratio": With respect to any Loan for any
twelve-month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Loan during
such period. The Debt Service Coverage Ratio for the residential cooperative
properties is based on Underwritten Net Cash Flow, as such definition pertains
to residential cooperative properties, divided by the annualized monthly
payments for such Loan.
"Default Interest": With respect to any Loan, interest accrued on
such Loan at the excess of (i) the related Default Rate over (ii) the sum of the
related Mortgage Rate and, if applicable, the related Excess Rate.
"Default Rate": With respect to each Loan, the per annum rate at
which interest accrues on such Loan following any event of default on such Loan,
including a default in the payment of a Monthly Payment or a Balloon Payment.
"Defaulted Loan": A Loan that is at least sixty days delinquent in
respect of its Monthly Payments or more than thirty days delinquent in respect
of its Balloon Payment, if any, in each case without giving effect to any grace
period permitted by the related Mortgage or Note and without regard to any
acceleration of payments under the related Mortgage and Note; provided, however,
that no Monthly Payment (other than a Balloon Payment) shall be deemed
delinquent if less than ten dollars of all amounts due and payable on such Loan
has not been received.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": As defined in Section 3.08(f)(i).
"Defeasance Loan": As defined in Section 3.08(f).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding principal balance of the Loan, which valuation results from
a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": A Certificate issued in registered,
definitive physical form.
"Delinquent Loan Status Report": A report prepared by the Servicer
(combining reports prepared by the Servicer and the Special Servicer) containing
substantially the information described in Exhibit G-2 attached hereto, setting
forth, among other things, a list of those Loans that, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, were delinquent 30 to 59 days, delinquent 60 to 89 days, delinquent 90
days or more, or current but Specially Serviced Loans or that were in
foreclosure but were not REO Loans. The Servicer shall not include on the
Delinquent Loan Status Report any Loan that has not been delinquent at least one
month after the related Due Date unless such Loan is a Specially Serviced Loan.
"Denomination": As defined in Section 5.01(b).
"Depositor": Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
close of business on the 11th day of the month in which such Distribution Date
occurs, or if such 11th day is not a Business Day, the Business Day immediately
following such 11th day.
"Directing Certificateholder": The Controlling Class
Certificateholder selected by the Holders of more than 50% of the Percentage
Interests in the Controlling Class, by Certificate Balance, as certified by the
Trustee from time to time; provided, however, that until a Directing
Certificateholder is so selected or after receipt of a notice from the Holders
of more than 50% of the Percentage Interests in the Controlling Class that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that beneficially owns the largest aggregate Certificate
Balance of the Controlling Class shall be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof that are not (within the meaning
of Treasury Regulation Section 1.512(b)-1(c)(5)) customarily provided to tenants
in connection with the rental of space for occupancy, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, the performance
of any construction work thereon or any use of such REO Property in a trade or
business conducted by the Trust Fund, in each case other than through an
Independent Contractor; provided, however, that the Trustee (or the Servicer or
the Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an REO Property solely because the Trustee (or the Servicer or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance or makes
decisions as to repairs (of the type that would be deductible under Section 162
of the Code) or capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
that is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code and (v) any other Person so designated by the Servicer or the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account.
"Distribution Date": With respect to any month, the fourth Business
Day after the Determination Date of such month, commencing on August 17, 2000.
"Due Date": With respect to (i) any Loan on or prior to its Maturity
Date, the day of the month set forth in the related Note on which each Monthly
Payment thereon is scheduled to be first due (without giving effect to any grace
period with respect to late Monthly Payments), (ii) any Loan after the Maturity
Date therefor, the day of the month set forth in the related Note on which each
Monthly Payment on such Loan had been scheduled to be first due (without giving
effect to any grace period) and (iii) any REO Loan, the day of the month set
forth in the related Note on which each Monthly Payment on the related Loan had
been scheduled to be first due (without giving effect to any grace period).
"Due Period": With respect to each Distribution Date, the period
beginning on the day following the Determination Date in the month immediately
preceding the month in which such Distribution Date occurs and ending on the
Determination Date of the month in which such Distribution Date occurs.
"Eligible Account": Either (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company
(including the Trustee) the long-term unsecured debt obligations of which are
rated at least "A" by S&P and "AA" by Fitch (or, if not rated by Fitch, then
having the indicated ratings from S&P), if the deposits are to be held in such
account for more than 30 days or the short-term debt obligations of which have a
short-term rating of not less than "A-1+" by S&P and "F-1+" by Fitch (or, if not
rated by Fitch, then having the indicated ratings from S&P) if the deposits are
to be held in such account for 30 days or less, or such other account or
accounts with respect to which each of the Rating Agencies shall have confirmed
in writing that the then-current rating assigned to any of the Certificates that
are currently being rated by such Rating Agency will not be qualified (as
applicable), downgraded or withdrawn by reason thereof or (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federal- or state-chartered depository institution or trust company (including
the Trustee) that, in either case, has a combined capital and surplus of at
least $50,000,000 and has corporate trust powers, acting in its fiduciary
capacity, provided that any state-chartered depository institution or trust
company is subject to regulation regarding fiduciary funds substantially similar
to 12 C.F.R. ss. 9.10(b), or such other account or accounts with respect to
which each of the Rating Agencies shall have confirmed in writing that the
then-current rating assigned to any of the Certificates that are currently being
rated by such Rating Agency will not be qualified (as applicable), downgraded or
withdrawn by reason thereof. Eligible Accounts may bear interest. No Eligible
Account shall be evidenced by a certificate of deposit, passbook or other
similar instrument. Accounts maintained with NCCB's wholly-owned subsidiary, NCB
Savings Bank, shall be deemed Eligible Accounts for the purpose of maintaining
the reserve and escrow accounts established under the NCCB Loans.
"Eligible Investor": (i) With respect to the Private Certificates, a
Qualified Institutional Buyer that is purchasing for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
offer, sale or transfer is being made in reliance on Rule 144A, (ii) with
respect to the Class A-X, Class E, Class F, Class G, Class H and Class J
Certificates, a Person which is not a "U.S. Person" as defined in Regulation S
under the Securities Act that is purchasing for its own account or for the
account of a Person which is not a "U.S. Person" and (iii) with respect to the
Class N Certificates, an Institutional Accredited Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter, in the case of Specially
Serviced Loan as to which the related Mortgaged Property is multifamily property
or (ii) the American Society for Testing and Materials in the case of Specially
Serviced Loan as to which the related Mortgaged Property is not multifamily
property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(g)(i)(A).
"Escrow Payment": Any payment received by the Servicer for the
account of any Mortgagor for application toward the payment of real estate
taxes, assessments, Insurance Policy premiums and similar items in respect of
the related Mortgaged Property, including amounts for deposit to any reserve
account.
"Euroclear": The Euroclear System.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the ARD Loans, interest
accrued on such Loan and allocable to the Excess Rate. The Excess Interest is an
asset of the Trust Fund, but shall not be an asset of either REMIC formed
hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate trust account or accounts by the
Trustee pursuant to Section 3.04(c), which shall be entitled "Wells Fargo Bank
Minnesota, N.A., as Trustee, in trust for Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-C1, Excess Interest Distribution Account" and which shall be an Eligible
Account. The Excess Interest Distribution Account shall not be an asset of
either REMIC formed hereunder.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable Mortgage Rate, each as set forth in the Mortgage Loan
Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Exchange Act Report": The monthly Statement to Certificateholders
to be filed with the Commission, under cover of the related form required by the
Exchange Act.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Loan or REO Property (other than a Loan
or REO Property, as the case may be, that was purchased (i) by any Mortgage Loan
Seller pursuant to Section 7 of the related Mortgage Loan Purchase Agreement or
by FINOVA, FINOVA Capital or Llama pursuant to Section 9.3 of the related FINOVA
Mortgage Loan Purchase Agreement or by Llama pursuant to Section 5.1 of the
Llama Mortgage Loan Purchase Agreement, (ii) by the Servicer or the Special
Servicer pursuant to Section 3.18(b), (iii) by the Holder of 100% of the
Percentage Interests in the Class V-1 or Class V-2 Certificates, as applicable,
pursuant to Section 9.03 or (iv) by any Mortgage Loan Seller, the Special
Servicer, the Holders of more than 50% of the Percentage Interests in the
Controlling Class or the Servicer pursuant to Section 9.01), that there has been
a recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds and
other payments or recoveries that, in the Special Servicer's reasonable good
faith judgment, exercised without regard to any obligation of the Special
Servicer to make payments from its own funds pursuant to Section 3.07(b), will
ultimately be recoverable.
"FINOVA": FINOVA Realty Capital, Inc. or any successor thereto.
"FINOVA Capital": FINOVA Capital Corporation or any successor
thereto.
"FINOVA Mortgage Loan Purchase Agreements": Collectively, that
certain Mortgage Loan Purchase Agreement, dated as of June 30, 1999, among
FINOVA Commercial Mortgage Loan Owner Trust 1998-1, FINOVA Capital and the
MSDWMC Mortgage Loan Seller, and that certain Mortgage Loan Purchase Agreement,
dated as of June 30, 1999, between FINOVA and the MSDWMC Mortgage Loan Seller.
"Fitch": Fitch (formerly known as Fitch IBCA, Inc.)
"FNMA": Federal National Mortgage Association or any successor
thereto.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Historical Loan Modification Report": With respect to each Servicer
Remittance Date, a report prepared by each Servicer (combining reports prepared
by each Servicer and the related Special Servicer) containing all or
substantially all the content described in Exhibit G-3 attached hereto and
setting forth, among other things, those Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, have been modified pursuant to this Agreement (i) during the related Due
Period and (ii) since the Cut-off Date, showing the original and the revised
terms thereof.
"Historical Loss Estimate Report": With respect to each Servicer
Remittance Date, a report prepared by each Servicer (combining reports prepared
by each Servicer and the related Special Servicer) containing substantially the
information described in Exhibit G-4 attached hereto and setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds collected for the related Due Period and, separately
stated, historically and (ii) the amount of realized losses occurring on the
Loans during such Due Period, set forth on a Loan-by-Loan basis.
"Independent": When used with respect to any specified Person, any
such Person that (i) is in fact independent of the Depositor, the Servicer, the
Special Servicer, the Trustee and any and all Affiliates thereof, (ii) does not
have any material direct financial interest in or any material indirect
financial interest in any of the Depositor, the Servicer, the Special Servicer
or any Affiliate thereof and (iii) is not connected with the Depositor, the
Servicer, the Special Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor, the Servicer, the Special Servicer, the Trustee or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
Class of debt or equity securities issued by the Depositor, the Servicer, the
Special Servicer, the Trustee or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Servicer or the Trust, delivered to the Trustee and
the Servicer), so long as the Trust Fund does not receive or derive any income
from such Person and provided that the relationship between such Person and the
Trust Fund is at arm's length, all within the meaning of Treasury Regulation
Section 1.856-4(b)(5) (except that the Servicer or the Special Servicer shall
not be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) has been delivered to the Trustee to that
effect or (ii) any other Person (including the Servicer and the Special
Servicer) upon receipt by the Trustee and the Servicer of an Opinion of Counsel
(at the expense of the party seeking to be deemed an Independent Contractor), to
the effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Ineligible Class V-1 Owner": Any Borrower, or any entity that owns
an ownership interest in a Borrower, other than, in each case, the CSFB Mortgage
Loan Seller or an affiliate thereof.
"Ineligible Class V-2 Owner": Any Borrower, or any entity that owns
an ownership interest in a Borrower, other than, in each case, the MSDWMC
Mortgage Loan Seller or an affiliate thereof.
"Initial Purchasers": Credit Suisse First Boston Corporation and
Morgan Stanley and Co. Incorporated, as initial purchaser of the Private
Certificates.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Institutional Lender/Owner": One or more of the following: (i) a
bank, saving and loan association, investment bank, insurance company, real
estate investment trust, trust company, commercial credit corporation, pension
plan, pension fund or pension advisory firm, mutual fund, government entity or
plan, (ii) an investment company, money management firm or "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, which is regularly engaged in the business of making or owning
mezzanine loans of similar types to the mezzanine loan in the question, (iii) a
trustee in connection with a securitization of the mezzanine loan, so long as
such trustee or the servicer therefor is an entity that otherwise would be an
Institutional Lender/Owner, (iv) an institution substantially similar to any of
the foregoing, in each case of clauses (i), (ii), (iii) or (iv) of this
definition, which (A) has total assets (in name or under management) in excess
of $250,000,00 and (except with respect to a pension advisory firm or similar
fiduciary) capital/statutory surplus or shareholder's equity of $50,000,000 and
(B) is regularly engaged in the business of making or owning commercial loans or
(v) an entity Controlled (as defined below) by the Underwriters or any of the
entities described in clause (i) above. For purposes of this definition only,
"Control" means the ownership, directly or indirectly, in the aggregate of more
than fifty percent (50%) of the beneficial ownership interests of an entity and
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of an entity, whether through the
ability to exercise voting power, by contract or otherwise ("Controlled" has the
meaning correlative thereto). The Special Servicer shall obtain from the
proposed transferee, and shall be entitled to rely on, (i) an officer's
certificate of a proposed transferee that such transferee satisfies the
requirements of this definition and (ii) in the case of any proposed transferee
that is an entity described in and meeting the criteria in clauses (i)-(iv) of
the immediately preceding sentence, the most recent financial statements of such
transferee.
"Insurance and Condemnation Proceeds": All proceeds (net of
expenses of collection) paid under any Insurance Policy or in connection with
the full or partial condemnation of a Mortgaged Property, in either case, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor, in either case, in accordance with the
Servicing Standard.
"Insurance Policy": With respect to any Loan, any hazard insurance
policy, flood insurance policy, title policy or other insurance policy that is
maintained from time to time in respect of such Loan or the related Mortgaged
Property.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period commencing on the 11th day of the calendar month preceding the month
in which such Distribution Date occurs and ending on the 10th day of the month
in which such Distribution Date occurs. Each Interest Accrual Period shall be
deemed for purposes of this definition to consist of 30 days.
"Interest Reserve Account": The account created and maintained by
each Servicer pursuant to Section 3.29, which shall be entitled "CapMark
Services, L.P., as Servicer, for the benefit of Wells Fargo Bank Minnesota,
N.A., as Trustee, in trust for Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-C1,
Interest Reserve Account," with respect to the Loans other than the NCCB Loans
and "National Consumer Cooperative Bank, as Servicer, for the benefit of Wells
Fargo Bank Minnesota, N.A., as Trustee, in trust for Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-C1, Interest Reserve Account," with respect to the
NCCB Loans and, in each case, which shall be an Eligible Account.
"Interest Shortfall Amount": As to any Distribution Date and any
Class of Regular Certificates, the amount, if any, by which the amount
distributed on such Class on such Distribution Date in respect of interest is
less than the related Optimal Interest Distribution Amount.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investor Inquiries": As defined in Section 4.02(b).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the REMIC Provisions.
"L'Enfant I Other Trust Fund": As defined in Section 2.01(g).
"L'Enfant II Other Trust Fund": As defined in Section 2.01(g).
"L'Enfant Intercreditor Agreement": The Amended and Restated
L'Enfant Participation and Intercreditor Agreement, dated as of the Cut-off
Date, between The Chase Manhattan Bank, as trustee for Depositor's Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, as the holder of one of the
L'Enfant Other Notes, and the CSFB Mortgage Loan Seller, as the holder of the
L'Enfant Trust Fund Note.
"L'Enfant Mortgage Loan": The Loan known as L'Enfant Plaza and
identified as Loan Number 8 on the Mortgage Loan Schedule. The L'Enfant Mortgage
Loan is a note which is one of three notes issued by the related borrower, each
secured by a first lien on L'Enfant Plaza.
"L'Enfant Other Notes": With respect to the L'Enfant Mortgage Loan,
the other two notes which are secured by the related Mortgaged Property and not
included in the Trust Fund.
"L'Enfant Servicer": First Union National Bank, as servicer under
the Depositor's Commercial Mortgage Pass-Through Certificates, Series 1998-C2.
"L'Enfant Special Servicer": Lennar Partners, Inc., as special
servicer under the Depositor's Commercial Mortgage Pass-Through Certificates,
Series 1998-C2.
"L'Enfant Trust Fund Note": The Trust Fund Note relating to the
L'Enfant Mortgage Loan.
"Late Collections": With respect to any Loan, all amounts (except
Penalty Charges) received thereon during any Due Period, whether as payments,
Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Loan (without regard to any acceleration of amounts due thereunder by
reason of default) on a Due Date in a previous Due Period and not previously
received. With respect to any REO Loan, all amounts (except Penalty Charges)
received in connection with the related REO Property during any Due Period,
whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of principal or interest
due or deemed due in respect of such REO Loan or the predecessor Loan (without
regard to any acceleration of amounts due under the predecessor Loan by reason
of default) on a Due Date in a previous Due Period and not previously received.
"Lead Lender": With respect to each Whole Loan relating to each
Trust Fund Note, the holder of the note which by the terms of the related
Co-Lender Agreement is entitled to direct the administration of the Whole Loan
and has the sole authority to exercise and enforce the lender's rights under the
Loan Documents relating to such Whole Loan.
"Liquidation Event": With respect to any Loan or REO Property, any
of the following events: (i) payment in full of such Loan; (ii) the making of a
Final Recovery Determination with respect to such Loan or REO Property; (iii)
the repurchase of such Loan by any Mortgage Loan Seller pursuant to Section 7 of
the related Mortgage Loan Purchase Agreement or by FINOVA or FINOVA Capital
pursuant to Section 9.3 of the related FINOVA Mortgage Loan Purchase Agreement
or by Llama pursuant to Section 5.1 of the Llama Mortgage Loan Purchase
Agreement; (iv) the purchase of such Loan or REO Property by the Servicer or the
Special Servicer pursuant to Section 3.18(b); (v) the purchase of any ARD Loan
by the Holder of 100% of the Percentage Interests in the Class V-1 or Class V-2
Certificates, as applicable, pursuant to Section 9.03 or (vi) the purchase of
such Loan or REO Property by any Mortgage Loan Seller, the Special Servicer, the
Holders of more than 50% of the Percentage Interests in the Controlling Class,
or the Servicer pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Loan or REO Loan as to which the Special
Servicer receives a full or discounted payoff with respect thereto from the
related Mortgagor or any Liquidation Proceeds with respect thereto, equal to the
product of the Liquidation Fee Rate and the proceeds of such full or discounted
payoff or the net Liquidation Proceeds (net of the related costs and expenses
associated with the related liquidation) related to such liquidated Specially
Serviced Loan or REO Loan, as the case may be; provided, however, that no
Liquidation Fee shall be payable with respect to clauses (iii), (iv) (but only
as it relates to a sale to the Servicer or Special Servicer), (v) or (vi) of the
definition of Liquidation Proceeds; and provided, further, that no Liquidation
Fee shall be payable in the event of a purchase of the 1211 Avenue of the
Americas Trust Fund Note by the holder of the 1211 Avenue of the Americas Other
Note upon the occurrence of a Servicing Transfer Event pursuant to the terms of
the 1211 Avenue of the Americas Intercreditor Agreement.
"Liquidation Fee Rate": As defined in Section 3.11.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received by the Servicer, net of
expenses, in connection with: (i) the liquidation of a Mortgaged Property or
other collateral constituting security for a Defaulted Loan, through trustee's
sale, foreclosure sale, REO Disposition or otherwise, exclusive of any portion
thereof required to be released to the related Mortgagor; (ii) the realization
upon any deficiency judgment obtained against a Mortgagor; (iii) the purchase of
a Defaulted Loan by the Servicer or the Special Servicer pursuant to Section
3.18(b) or any other sale thereof pursuant to Section 3.18(c); (iv) the
repurchase of a Loan by any Mortgage Loan Seller pursuant to Section 7 of the
related Mortgage Loan Purchase Agreement or by FINOVA or FINOVA Capital pursuant
to Section 9.3 of the related FINOVA Mortgage Loan Purchase Agreement or by
Llama pursuant to Section 5.1 of the Llama Mortgage Loan Purchase Agreement; (v)
the purchase of such Loan by the Holder of 100% of the Percentage Interests in
the Class V-1 or Class V-2 Certificates, as applicable, pursuant to Section
9.03; or (vi) the purchase of all Loans by any Mortgage Loan Seller, Holders of
more than 50% of the Percentage Interests in the Controlling Class or the
Servicer pursuant to Section 9.01.
"Llama": Llama Capital Mortgage Company Limited Partnership, or any
successor thereto.
"Llama Mortgage Loan Purchase Agreement": That certain Mortgage Loan
Purchase Agreement, dated as of December 17, 1999 among Llama and the MSDWMC
Mortgage Loan Seller.
"Loan": Each of the mortgage loans including the L'Enfant Trust Fund
Note, the 1211 Trust Fund Note and the Crystal Pavilion Trust Fund Note
transferred and assigned to the Trustee pursuant to Section 2.01, and from time
to time held in the Trust Fund, including any Loan that becomes a Specially
Serviced Loan. As used herein, the term "Loan" includes the related Note,
Mortgage and other documents contained in the related Mortgage File and any
related agreements. The term "Loan" does not include any Other Note.
"Loan Agreement": With respect to any Loan, the loan agreement, if
any, between the related Mortgage Loan Originator and the Borrower, pursuant to
which such Loan was made.
"Loan Documents": With respect to each Loan, to the extent
applicable, the Loan Agreement, the Mortgage, the Note, the Assignment of Leases
(if separate from the Mortgage), the Security Agreement, the related Co-Lender
Agreement, the L'Enfant Intercreditor Agreement relating to the L'Enfant
Mortgage Loan, the 1211 Avenue of the Americas Intercreditor Agreement relating
to the 1211 Avenue of the Americas Mortgage Loan, the Crystal Pavilion/Petry
Building Intercreditor Agreement relating to the Crystal Pavilion/Petry Building
Mortgage Loan, any letters of credit, escrow or reserve account information
relating to the Additional Collateral Loans, any UCC Financing Statements, the
title insurance policy, all surveys, all insurance policies, any environmental
liability agreements, any escrow agreements for improvements or lease-up, any
guaranties related to such Loan, any prior assignments of mortgage in the event
that the originator is not the originator of record, any collateral assignments
of property management agreements and other services agreements required by the
applicable commitment and other loan documents, any preferred equity and
mezzanine loan documents, with respect to the L'Enfant Mortgage Loan and the
1211 Avenue of the Americas Mortgage Loan, any documents from other
securitizations related to the servicing of such loans, and all modification,
consolidation and extension agreements, if any.
"Loan Periodic Update File": A file prepared monthly by the Servicer
or, with respect to Specially Serviced Loans, the Special Servicer as required
by Section 3.12(c) and containing substantially the information described in
Exhibit G-10 hereto.
"Loan Set-Up File": A file prepared by the Servicer or, with respect
to Specially Serviced Loans, the Special Servicer as required by Section 3.12(c)
and containing substantially the information described in Exhibit G-9 hereto.
"Lock-Box Account": With respect to any Mortgaged Property, the
account, if any, created pursuant to any documents relating to a Loan to receive
revenues therefrom. Any Lock-Box Account shall be beneficially owned for federal
income tax purposes by the Person who is entitled to receive the reinvestment
income or gain thereon in accordance with the terms and provisions of the
related Loan and Section 3.06, which Person shall be taxed on all reinvestment
income or gain thereon. The Servicer shall be permitted to make withdrawals
therefrom for deposit into the related Cash Collateral Accounts.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the applicable Mortgage Loan Originator or the
applicable Mortgage Loan Seller and the related Borrower, pursuant to which the
related Lock-Box Account may have been established.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Trustee, pursuant to Section
3.04(b), in trust for the Certificateholders, which shall be entitled "Wells
Fargo Bank Minnesota, N.A., as Trustee, for the benefit of Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-C1, Lower-Tier Distribution Account." Any such account
or accounts shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Loans, any REO Property with respect
thereto, such amounts as shall from time to time be held in the Collection
Account, the Interest Reserve Account, the REO Account, if any, and the
Lower-Tier Distribution Account, and except as otherwise provided in this
Agreement, all other property included in the Trust Fund that is not in the
Upper-Tier REMIC or designated as a grantor trust asset in the Preliminary
Statement hereto.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or any
successor Management Agreement between such parties.
"Manager": With respect to any Loan, any property manager for the
related Mortgaged Property or Mortgaged Properties.
"Maturity Date": With respect to any Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Loan by reason of
default thereunder, (ii) any grace period permitted by the related Note or (iii)
any modification, waiver or amendment of such Loan granted or agreed to by the
Servicer or the Special Servicer pursuant to Section 3.20 occurring prior to
such date of determination.
"Mezzanine Loan": Any loan constituting "Mezzanine Debt" or a
"Mezzanine Loan," as identified in Exhibit E.
"Mezzanine Loan Collateral": With respect to any Mezzanine Loan, any
stock, partnership interests, membership interests or other equity interest in
the related Borrower that has been pledged pursuant to such Mezzanine Loan.
"Mezzanine Loan Holder": With respect to any Mezzanine Loan, the
Holder or obligee thereof.
"Monthly Interest Distribution Amount": As to any Distribution Date
and any Class of Regular Certificates, other than the Class A-X Certificates,
the Accrued Certificate Interest Amount for such Class for such Distribution
Date, reduced by (i) such Class's share of the Uncovered Prepayment Interest
Shortfall Amount for such Distribution Date and (ii) any allocations to such
Class of any Certificate Deferred Interest for such Distribution Date. As to any
Distribution Date and the Class A-X Certificates, the Accrued Certificate
Interest Amount for such Class for such Distribution Date, reduced by such
Class's share of the Uncovered Prepayment Interest Shortfall Amount for such
Distribution Date.
"Monthly Payment": With respect to any Loan (other than any REO
Loan) and any Due Date, the scheduled monthly payment of principal, if any, and
interest at the Mortgage Rate, excluding any Balloon Payment, which is payable
by the related Borrower on such Due Date under the related Note (as such terms
may be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Borrower or by reason of a modification, waiver or
amendment of such Loan granted or agreed to by the Servicer or Special Servicer
pursuant to Section 3.20), without regard to any acceleration of principal of
such Loan by reason of a default thereunder. With respect to an REO Loan, the
monthly payment that would otherwise have been payable on the related Due Date
had the related Note not been discharged, determined as set forth in the
preceding sentence and on the assumption that all other amounts, if any, due
thereunder are paid when due.
"Mortgage": With respect to any Loan, the mortgage, deed of trust,
deed to secure debt or other instrument securing a Note and creating a lien on
the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Loan that as of
any Due Date has been modified to reduce the rate at which interest is paid
currently below the related Mortgage Rate, to the extent interest accrued at a
rate equal to the amount of such reduction is capitalized, the excess, if any,
of (a) interest accrued on the Stated Principal Balance thereof during the
related Mortgage Interest Accrual Period at the Mortgage Rate over (b) the
interest portion of the related Monthly Payment or, if applicable, Assumed
Scheduled Payment due on such Due Date (calculated at the applicable reduced
rate).
"Mortgage File": With respect to any Loan, the following documents:
(i) the original Note (or a lost note affidavit), bearing, or
accompanied by, all prior and intervening endorsements or assignments
showing a complete chain of endorsement or assignment from the applicable
Mortgage Loan Originator either in blank or to the applicable Mortgage
Loan Seller, and further endorsed (at the direction of the Depositor given
pursuant to the related Mortgage Loan Purchase Agreement) by the
applicable Mortgage Loan Seller, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of Wells Fargo Bank Minnesota, N.A., as trustee
for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-C1, without recourse, representation or warranty, express or
implied";
(ii) a duplicate original Mortgage or a copy or, if such Mortgage
has been returned by the related recording office, (A) an original, (B) a
copy of a certified copy or (C) a copy thereof from the applicable
recording office and originals (or original or copies of certified copies
from the applicable recording office) of any assignments thereof showing a
complete chain of assignment from the related Mortgage Loan Originator to
the applicable Mortgage Loan Seller, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
either in blank or from the applicable Mortgage Loan Seller to "Wells
Fargo Bank Minnesota, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-C1";
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals or
copies of any assignments thereof showing a complete chain of assignment
from the applicable Mortgage Loan Originator of the Loan to the applicable
Mortgage Loan Seller, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
either in blank or from the Mortgage Loan Seller to "Wells Fargo Bank
Minnesota, N.A., as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-C1";
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals or copies
of any assignments thereof showing a complete chain of assignment from the
applicable Mortgage Loan Originator of the Loan to the applicable Mortgage
Loan Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
either in blank or from the Mortgage Loan Seller or the applicable
Mortgage Loan Originator to "Wells Fargo Bank Minnesota, N.A., as trustee
for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-C1," which assignment may be included as part of an omnibus
assignment covering other documents relating to the Loan provided that
such omnibus assignment is effective under applicable law;
(viii) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence of recording thereon, in those
instances where the terms or provisions of the Mortgage, Note or any
related security document have been modified or the Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet
been issued, a binding written commitment or interim binder, relating to
such Loan;
(x) the original of any guaranty of the obligations of the Mortgagor
under the Loan;
(xi) certified copies of all UCC Financing Statements and
continuation statements or copies thereof sufficient to perfect (and
maintain the perfection of) the security interest held by the originator
of the Loan (and each assignee prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon), and original UCC assignments in a form
suitable for filing, sufficient to transfer such security interest to the
Trustee;
(xii) the original or copy of the power of attorney (with evidence
of recording thereon) granted by the Mortgagor if the Mortgage, Note or
other document or instrument referred to above was not signed by the
Mortgagor;
(xiii) except with respect to the NCCB Loans, with respect to any
debt of a Borrower permitted under the related Loan, a subordination
agreement, standstill agreement or other intercreditor agreement relating
to such other debt, if any, including any mezzanine loan documents or
preferred equity documents;
(xiv) if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a
copy of the UCC-1 financing statements, if any, submitted for filing with
respect to the Mortgage Loan Seller's security interest in the Cash
Collateral Accounts and Lock-Box Accounts and all funds contained therein
(and UCC-2 or UCC-3 financing statements assigning such security interest
to the Trustee on behalf of the Certificateholders);
(xv) any Loan Agreement;
(xvi) the originals of letters of credit, if any, relating to the
Loans;
(xvii) with respect to the Trust Fund Notes, the related Co-Lender
Agreement;
(xviii) with respect to the L'Enfant Mortgage Loan and the 1211
Avenue of the Americas Mortgage Loan, the L'Enfant Intercreditor Agreement
and the 1211 Avenue of the Americas Intercreditor Agreement, respectively,
and the pooling agreement or trust agreement related to the securitization
of the Other Notes;
(xix) any environmental insurance policies;
(xx) the original ground lease, if any, or a copy thereof, or a
certified copy of a franchise agreement, if any; and
(xxi) any additional documents required to be added to the Mortgage
File pursuant to Section 3.20(i).
With respect to the L'Enfant Mortgage Loan, the preceding document
delivery requirements will be met by the delivery of copies of any mortgage loan
documents required to be delivered to the Lead Lender other than the L'Enfant
Intercreditor Agreement.
With respect to the 1211 Avenue of the Americas Mortgage Loan, the
preceding document delivery requirements will be met by the delivery of copies
of any mortgage loan documents required to be delivered to the Lead Lender other
than the 1211 Avenue of the Americas Intercreditor Agreement.
Notwithstanding the third preceding paragraph above, whenever the
term "Mortgage File" is used to refer to documents actually received by the
Trustee, such term shall not be deemed to include such documents and instruments
required to be included therein unless they are actually so received.
"Mortgage Interest Accrual Period": With respect to any Loan, the
period during which interest accrues pursuant to the related Note.
"Mortgage Loan Originator": Any institution that originated a Loan.
"Mortgage Loan Purchase Agreement": Any of the CSFB Mortgage Loan
Purchase Agreement, the MSDWMC Mortgage Loan Purchase Agreement or the NCCB
Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Loan:
(i) the loan number (as specified in Annex A to the Prospectus
Supplement);
(ii) the property name;
(iii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iv) the Mortgage Rate in effect at the Cut-off Date;
(v) the Net Mortgage Pass-Through Rate in effect at the Cut-off
Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) remaining term to stated maturity, (b) Maturity Date
and (c) with respect to each ARD Loan, the Anticipated Repayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(xi) the number of units, pads, rooms or square footage with respect
to the Mortgaged Property;
(xii) the Loan interest accrual method;
(xiii) the applicable Primary Servicing Fee Rate, Servicing Fee
Rate, and Trustee Fee Rate;
(xiv) the Due Date;
(xv) whether such loan is an ARD Loan; and
(xvi) whether the Loan is subject to lockbox/defeasance.
Such Mortgage Loan Schedule also shall set forth the aggregate of
the amounts described under clause (vii) above for all of the Loans. Such list
may be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Seller": Any of the CSFB Mortgage Loan Seller, the
MSDWMC Mortgage Loan Seller or the NCCB Mortgage Loan Seller.
"Mortgage Pass-Through Rate": With respect to any Loan that provides
for calculations of interest based on a 360-day year composed of twelve months
of 30 days each for any Mortgage Interest Accrual Period, the Net Mortgage Rate
thereof. With respect to any Loan that provides for calculations of interest
based on a 360-day year and the actual number of days elapsed, (a) for any
Mortgage Interest Accrual Period relating to an Interest Accrual Period
beginning in any January, February, April, June, September and November and in
any December occurring in a year immediately preceding any year that is not a
leap year, the Net Mortgage Rate thereof or (b) for any Mortgage Interest
Accrual Period relating to any Interest Accrual Period beginning in any March,
May, July, August and October and in any December occurring in a year
immediately preceding a year that is a leap year, the product of the Net
Mortgage Rate thereof and a fraction whose numerator is 31 and whose denominator
is 30.
"Mortgage Rate": With respect to: (i) any Loan on or prior to its
Maturity Date, the annual rate at which interest is scheduled (in the absence of
a default) to accrue on such Loan from time to time in accordance with the
related Note and applicable law; (ii) any Loan after its Maturity Date, the
annualized rate described in clause (i) above determined without regard to the
passage of such Maturity Date; and (iii) any REO Loan, the annualized rate
described in clause (i) or (ii), as applicable, above, determined as if the
predecessor Loan had remained outstanding. For purposes of calculating Mortgage
Pass-Through Rates and the Weighted Average Net Mortgage Rate, the Mortgage Rate
for any Loan whose interest rate is reduced will be the Mortgage Rate of such
Loan without taking into account any reduction in the interest rate by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of its
equitable powers or any reduction in the interest rate resulting from a work-out
or modification by the Special Servicer.
"Mortgaged Property": The underlying real property (including any
REO Property) that secures a Loan, in each case consisting of a parcel or
parcels of land improved by a commercial and/or multifamily building or
facility, together with any personal property (to the extent the same are owned
by the Borrower and necessary in connection with the operation of the related
property), fixtures, leases and other property or rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Note, including, without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Note.
"MSDWMC Loans": The Loans transferred to the Depositor pursuant to
the MSDWMC Mortgage Loan Purchase Agreement.
"MSDWMC Mortgage Loan Purchase Agreement": With respect to the
MSDWMC Loans, the agreement between the Depositor and the MSDWMC Mortgage Loan
Seller, dated as of July 11, 2000, relating to the transfer of the MSDWMC
Mortgage Loan Seller's right, title and interest in and to the MSDWMC Loans.
"MSDWMC Mortgage Loan Seller": Morgan Stanley Dean Witter Mortgage
Capital Inc., a New York corporation, and its successors in interest.
"NCCB": National Consumer Cooperative Bank.
"NCCB Loans" or "Pool II Loans": The Loans transferred to the
Depositor pursuant to the NCCB Mortgage Loan Purchase Agreement.
"NCCB Specially Serviced Loan" or "Pool II Specially Serviced Loan":
As defined in Section 3.01(a).
"NCCB Mortgage Loan Purchase Agreement": With respect to the NCCB
Loans, the agreement between the Depositor and the NCCB Mortgage Loan Seller,
dated as of July 11, 2000, relating to the transfer of the NCCB Mortgage Loan
Seller's right, title and interest in and to the NCCB Loans.
"NCCB Mortgage Loan Seller": National Consumer Cooperative Bank, a
federally chartered corporation and its successors in interest.
"NCCB Subordinate Debt Conditions": With respect to a Borrower
encumbering a Mortgaged Property relating to an NCCB Loan with a subordinate
mortgage, the following conditions: (i) the loan or loans to be secured by each
such subordinate mortgage is made by NCCB, or any Affiliate of NCCB, (ii) each
such subordinate mortgage is expressly subject and subordinate to the lien of
the Mortgage encumbering the Mortgaged Property in question, (iii) such
subordinate mortgage is expressly made in compliance with the underwriting
standards which NCCB customarily employs in connection with making subordinate
mortgages for its own mortgage loan portfolio, (iv) as of the date of the
closing of the subordinate mortgage loan in question, the New Loan-to-Value
Ratio (as defined below) does not exceed the lesser of (A) 45% and (B) a
percentage equal to the sum of (I) 15%, plus (II) the loan to value ratio of
such loan (as a residential cooperative building) calculated as of the Cut-off
Date, which Cut-off Date loan to value ratio shall be equal to a fraction,
expressed as a percentage, the numerator of which is the Cut-off Date Principal
Balance of such Loan and the denominator of which is the Appraised Value of such
Mortgaged Property as set forth in the Appraisal conducted in connection with
the origination of such Loan) (for example, an NCCB Loan with such a loan to
value ratio of 20%, may increase to a New Loan-to-Value Ratio of 35% and an NCCB
Loan with such a loan to value ratio of 40%, may increase to a New Loan-to-
Value Ratio of 45%), (v) NCCB or any Affiliate that originates the subordinate
mortgage loan, executes and delivers to the Trustee a subordination agreement
with respect to such subordinate mortgage in substantially the form of Exhibit K
(provided that the Trustee shall have no responsibility for determining the
sufficiency or validity thereof), (vi) if the subordinate mortgage loan will not
be a fully amortizing loan, the stated maturity date of the subordinate mortgage
loan shall be no earlier than the Maturity Date of the Loan, (vii) the
subordinate mortgage loan shall have interest payable on a current basis, with
no deferral and (viii) the subordinate mortgage loan is made solely for the
purpose of funding capital expenditures, major repairs or reserves. For purposes
of this paragraph: "Mortgage Debt" shall mean the sum of (x) the aggregate
outstanding principal balance of all loans secured by one or more mortgages then
encumbering the Mortgaged Property in question (including the related Loan and
any then existing subordinate mortgage loans) and (y) the principal amount of
the proposed new subordinate mortgage loan; "New Loan-to-Value Ratio" shall
mean, as of any date for any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Mortgage Debt for the related
Mortgaged Property on such date and the denominator of which is the Appraised
Value of the related Mortgaged Property; "Appraised Value" shall mean the value
for a Mortgaged Property determined as a cooperatively-owned multifamily
residential building (rather than a multifamily rental apartment building) as
shown in the applicable Appraisal, or, if a more recent appraisal of the value
of a Mortgaged Property determined as a cooperatively-owned multifamily
residential building, has been prepared by or on behalf of the Pool II Servicer,
as shown in such more recent appraisal; and "Appraisal" shall mean an MAI
appraisal of the applicable Mortgaged Property made (a) in conformance with
NCCB's customary underwriting requirements, and (b) not more than one year prior
to the origination date of the related Loan and reviewed by the Pool II
Servicer.
"Net Investment Earnings": With respect to any of the Collection
Account, any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account, any Servicing Account or the REO Account, for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest and other income realized during
such period on funds relating to the Trust Fund held in such account (and which
is not required to be paid to the related Mortgagor) exceeds the aggregate of
all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any of the Collection
Account, any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account, any Servicing Account or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all losses, if any, incurred during such period
in connection with the investment of funds relating to the Trust Fund held in
such account (and which investment is not directed by the related Borrower) in
accordance with Section 3.06 exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Pass-Through Rate": With respect to any Pool I Loan
and any Distribution Date, the Mortgage Pass-Through Rate for such Loan for the
related Interest Accrual Period minus the sum of the Servicing Fee Rate and the
Trustee Fee Rate. With respect to any Pool II Loan and any Distribution Date,
the Mortgage Pass-Through Rate for such Loan for the related Interest Accrual
Period minus the Trustee Fee Rate.
"Net Mortgage Rate": With respect to any Interest Accrual Period and
any Pool I Loan, a per annum rate equal to the Mortgage Rate for such Loan as of
the Cut-off Date minus the related Primary Servicing Fee Rate. With respect to
any Interest Accrual Period and any Pool II Loan, a per annum rate equal to the
Mortgage Rate for such Loan as of the Cut-off Date minus the sum of the
Servicing Fee Rate and related Primary Servicing Fee Rate.
"Net Operating Income": With respect to any Mortgaged Property
(other than residential cooperative properties), for any Mortgagor's fiscal year
end, the total operating revenues derived from such Mortgaged Property during
such period, minus the total operating expenses incurred in respect of such
Mortgaged Property during such period, other than (i) non-cash items such as
depreciation, (ii) amortization, (iii) actual capital expenditures and (iv) debt
service on the related Loan. With respect to residential cooperative properties,
the Underwritten Net Cash Flow for such properties, minus the total estimated
operating expenses, based on the Appraisal obtained in connection with the
origination of the related Mortgage Loan, incurred in respect of such property
during such period, other than (i) non-cash items such as depreciation, (ii)
amortization, (iii) actual capital expenditures and (iv) debt service on the
related Loan.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust Fund has the right to
renegotiate the terms of such lease.
"New Loan-to-Value Ratio": As defined within the definition of NCCB
Subordinate Debt Conditions.
"NOI Adjustment Worksheet": A report prepared by the Servicer or the
Special Servicer containing substantially the information described in Exhibit
G-8 attached hereto.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Trustee with an
effective Internal Revenue Service Form 4224 (or successor form) or (ii) the
Transferee delivers to both the Transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that such Transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such Transfer of the Residual Certificate will not be
disregarded for federal income tax purposes.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance or any portion thereof.
"Nonrecoverable P&I Advance": The portion of any P&I Advance
(including interest accrued thereon at the Reimbursement Rate) previously made
or proposed to be made in respect of a Loan or REO Loan which, in the judgment
(in accordance with the Servicing Standard) of the Servicer, the Special
Servicer or the Trustee, as applicable, will not be ultimately recoverable,
together with any accrued and unpaid interest thereon, from Late Collections or
any other recovery on or in respect of such Loan or REO Loan. The determination
by the Servicer, the Special Servicer or the Trustee, as applicable, that it has
made (or, in the case of a determination made by the Special Servicer, that the
Servicer has made) a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered to (i) the Trustee and the
Depositor, in the case of the Servicer, (ii) to the Servicer in the case of the
Special Servicer, and (iii) to the Depositor and the Servicer, in the case of
the Trustee, setting forth such determination of nonrecoverability and the
considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall include but
shall not be limited to information, to the extent available, such as related
income and expense statements, rent rolls, and with respect to cooperative
properties, maintenance schedules, occupancy status, property inspections, and
shall include an Appraisal of the related Loan or Mortgaged Property, the cost
of which Appraisal shall be advanced by the Servicer as a Servicing Advance).
The Trustee shall be entitled to conclusively rely on the Servicer's
determination that a P&I Advance is nonrecoverable. The Servicer and the Trustee
shall be entitled to conclusively rely on the Special Servicer's determination
that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": The portion of any Servicing
Advance (including interest accrued thereon at the Reimbursement Rate)
previously made or proposed to be made in respect of a Loan or REO Property
which, in the judgment (in accordance with the Servicing Standard) of the
Servicer, the Special Servicer or the Trustee, as the case may be, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon,
from Late Collections or any other recovery on or in respect of such Loan or REO
Property. The determination by the Servicer, the Special Servicer or the
Trustee, as the case may be, that it has made (or, in the case of a
determination made by the Special Servicer, that the Servicer has made) a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by
an Officer's Certificate delivered to (i) the Trustee and the Depositor, in the
case of the Servicer, (ii) to the Servicer in the case of the Special Servicer,
and (iii) to the Depositor and the Servicer, in the case of the Trustee. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall include but
shall not be limited to information, to the extent available, such as related
income and expense statements, rent rolls, (provided, however, with respect to
cooperative properties, maintenance schedules shall be delivered in lieu of rent
rolls), occupancy status and property inspections, and shall include an
Appraisal of the related Loan or Mortgaged Property, the cost of which Appraisal
shall be advanced by the Servicer as a Servicing Advance). The Trustee will be
entitled to conclusively rely on the Servicer's determination that a Servicing
Advance is nonrecoverable. The Servicer and the Trustee shall be entitled to
conclusively rely on the Special Servicer's determination that a Servicing
Advance is a Nonrecoverable Servicing Advance.
"Note": The original executed note evidencing the indebtedness of a
Mortgagor under a Loan, together with any rider, addendum or amendment thereto.
"Notional Balance": For any date of determination and the Class A-X
Certificates, an amount equal to the sum of the Certificate Balances of the
Classes of Regular Certificates (other than the Class A-X Certificates) as of
the preceding Distribution Date (after giving effect to the distribution of
principal on such Distribution Date) or, in the case of the first Distribution
Date, the Cut-off Date.
"NRSRO": Nationally recognized statistical rating organization.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee.
"Operating Statement Analysis Report": With respect to each Loan and
REO Property, a report prepared by the Servicer or Special Servicer, as
applicable, substantially containing the information described in Exhibit G-7
attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may be
salaried counsel for the Depositor, the Servicer or the Special Servicer,
acceptable in form and delivered to the Trustee, except that any opinion of
counsel relating to (a) the qualification of either REMIC created hereunder as a
REMIC, (b) compliance with the REMIC Provisions or (c) the resignation of the
Depositor, the Servicer or the Special Servicer pursuant to Section 6.04 must be
an opinion of counsel that is in fact Independent of the Depositor, the Servicer
or the Special Servicer, as applicable.
"Optimal Interest Distribution Amount": As to any Distribution Date
and any Class of Regular Certificates, the sum of the Monthly Interest
Distribution Amount and the Unpaid Interest Shortfall Amount for such Class for
such Distribution Date.
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class A-X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Other Note": The 1211 Avenue of the Americas Other Note, the
L'Enfant Other Notes or the Crystal Pavilion/Petry Building Other Notes.
"Other Trust Fund": Any of the 1211 Avenue of the Americas Other
Trust Fund, the L'Enfant I Other Trust Fund or the L'Enfant II Other Trust Fund.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Loan or REO Loan (other than the 1211
Avenue of the Americas Mortgage Loan), any advance made by the Servicer or the
Trustee, as applicable, and with respect to the 1211 Avenue of the Americas
Mortgage Loan, any advance made by the 1211 Avenue of the Americas Servicer or
the Trustee, as applicable, in each case, pursuant to Section 4.03 or Section
7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day immediately prior thereto.
"Pass-Through Rate": With respect to each Class of Certificates, the
respective per annum rate listed below:
Class A-1: Class A-1 Pass Through Rate
Class A-2: Class A-2 Pass Through Rate
Class A-X: Class A-X Pass Through Rate
Class B: Class B Pass Through Rate
Class C: Class C Pass Through Rate
Class D: Class D Pass Through Rate
Class E: Class E Pass Through Rate
Class F: Class F Pass Through Rate
Class G: Class G Pass Through Rate
Class H: Class H Pass Through Rate
Class J: Class J Pass Through Rate
Class K: Class K Pass Through Rate
Class L: Class L Pass Through Rate
Class M: Class M Pass Through Rate
Class N: Class N Pass Through Rate
"Penalty Charges": With respect to any Loan or REO Loan, any amounts
actually collected thereon from the Mortgagor that represent late payment
charges or Default Interest, other than a Prepayment Premium or Yield
Maintenance Charge.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance (or, in the case of the Class A-X Certificates, the Notional
Balance) of such Class of Certificates as of the Closing Date. With respect to a
Class V-1, Class V-2 or Residual Certificate, the percentage interest as set
forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities, regardless whether issued by the Depositor, the
Servicer, the Special Servicer, the Trustee or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America, provided such obligations mature one year or less after the date
of issuance and which are backed by the full faith and credit of the
United States of America; provided that any obligation of, or guarantee
by, FNMA or FHLMC, other than an unsecured senior debt obligation of FNMA
or FHLMC, shall be a Permitted Investment only if such investment would
not result in the downgrading, withdrawal or qualification of the
then-current rating assigned by each Rating Agency to any Certificate as
confirmed in writing;
(ii) time deposits, unsecured certificates of deposit or bankers'
acceptances that mature in one year or less after the date of issuance and
are issued or held by any depository institution or trust company
incorporated or organized under the laws of the United States of America
or any State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or other
short-term debt obligations of such depository institution or trust
company are rated at least "A-1+" by S&P and "F-1+" by Fitch (if rated by
Fitch) or would not result in the downgrading, withdrawal or qualification
of the then-current rating assigned by each Rating Agency to any
Certificate, as confirmed in writing by such Rating Agency;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above;
(iv) debt obligations maturing in one year or less bearing interest
or sold at a discount issued by any corporation incorporated under the
laws of the United States of America or any state thereof, which
securities have (i) ratings from S&P at least equal to "AAA" and ratings
from Fitch at least equal to "AA-" or (ii) such other ratings (as
confirmed by the applicable Rating Agency in writing) as will not result
in a downgrade, qualification or withdrawal of the then-current rating of
the Certificates that are currently being rated by such Rating Agency;
provided, however, that securities issued by any particular corporation
will not be Permitted Investments to the extent that investment therein
will cause the then outstanding principal amount of securities issued by
such corporation and held in the accounts established hereunder to exceed
10% of the sum of the aggregate principal balance and the aggregate
principal amount of all Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) payable on demand or on a
specified date maturing in one year or less after the date of issuance
thereof and which is rated at least "A-1+" by S&P, and "F-1+" by Fitch;
(vi) units of investment funds that maintain a constant net asset
value and money market funds rated "AAAm" or "AAAm-G" by S&P and "AAA" by
Fitch; and
(vii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating Agency shall
have confirmed in writing that such investment will not result in a
downgrade, qualification or withdrawal of the then-current rating of the
Certificates that are currently being rated by such Rating Agency and (b)
which qualifies as a "cash flow investment" pursuant to Section 860G(a)(6)
of the Code;
provided that such instrument or security qualifies as a "cashflow investment"
pursuant to Section 860G(a)(6) of the Code, and provided, further, however, that
in each case, if the instrument or security is rated by S&P, (a) it shall not
have an "r" highlighter affixed to its rating from S&P, (b) it shall have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change and (c) any such investment that provides for a variable rate of interest
must have an interest rate that is tied to a single interest rate index plus a
fixed spread, if any, and move proportionately with such index.
"Permitted Mezzanine Loan Holder": With respect to any Mezzanine
Loan, the related Mortgage Loan Seller, any Institutional Lender/Owner or any
other Mezzanine Loan Holder with respect to which each Rating Agency has
confirmed in writing to the Special Servicer and the Trustee that the holding of
such Mezzanine Loan by such Person would not cause a qualification, downgrade or
withdrawal of any of such Rating Agency's then-current ratings on the
Certificates.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(e).
"Pool I Loans": Loans other than the NCCB Loans.
"Pool I Prepayment Interest Excess": With respect to any
Distribution Date, the aggregate amount, with respect to all Pool I Loans that
were subject to Principal Prepayment in full or in part, or as to which
Insurance and Condemnation Proceeds were received by the Pool I Servicer or Pool
I Special Servicer for application to such Loans, in each case after the Due
Date in the month of such Distribution Date and on or prior to the related
Determination Date, the amount of interest accrued at the Mortgage Rate for such
Loans on the amount of such Principal Prepayments or Insurance and Condemnation
Proceeds after the Mortgage Interest Accrual Period relating to such Due Date
and accruing in the manner set forth in the Loan Documents relating to such
Loans, to the extent such interest is collected by the Pool I Servicer or the
Pool I Special Servicer.
"Pool I Servicer": With respect to the Loans other than the NCCB
Loans, CapMark Services, L.P. and its successors in interest and assigns, or any
successor servicer appointed as herein provided.
"Pool I Special Servicer": With respect to the Loans other than the
NCCB Loans, Lennar Partners, Inc. and its successors in interest and assigns, or
any successor special servicer appointed as herein provided.
"Pool I Specially Serviced Loan": As defined in Section 3.01(a).
"Pool II Prepayment Interest Excess": With respect to any
Distribution Date, the aggregate amount, with respect to all Pool II Loans that
were subject to Principal Prepayment in full or in part, or as to which
Insurance and Condemnation Proceeds were received by the Pool II Servicer or
Pool II Special Servicer for application to such Loans, in each case after the
Due Date in the month of such Distribution Date and on or prior to the related
Determination Date, the amount of interest accrued at the Mortgage Rate for such
Loans on the amount of such Principal Prepayments or Insurance and Condemnation
Proceeds after the Mortgage Interest Accrual Period relating to such Due Date
and accruing in the manner set forth in the Loan Documents relating to such
Loans, to the extent such interest is collected by the Pool II Servicer or the
Pool II Special Servicer.
"Pool II Servicer": With respect to the NCCB Loans, National
Consumer Cooperative Bank and its successors in interest and assigns, or any
successor servicer appointed as herein provided.
"Pool II Special Servicer": With respect to the NCCB Loans, National
Consumer Cooperative Bank and its successors in interest and assigns, or any
successor special servicer appointed as herein provided.
"Prepayment Assumption": With respect to all Loans other than the
ARD Loans, the assumption that all payments required to be made on such Loans
according to their contractual terms (including repayment in full on their
respective maturity dates) are so made. With respect to all ARD Loans, the
assumption that the ARD Loans will be fully prepaid on their related Anticipated
Repayment Dates.
"Prepayment Date": With respect to any Principal Prepayment, the
date on which such Principal Prepayment is to be made.
"Prepayment Interest Excess": The Pool I Prepayment Interest Excess
and the Pool II Prepayment Interest Excess.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Loan that was subject to a Principal Prepayment in full or in
part, or as to which Insurance and Condemnation Proceeds were received by the
Servicer or Special Servicer for application to such Loan, in each case after
the Determination Date in the calendar month preceding such Distribution Date
but prior to the Due Date in the related Due Period, the amount of interest that
would have accrued at the Net Mortgage Pass-Through Rate for such Loan on the
amount of such Principal Prepayment or Insurance and Condemnation Proceeds
during the period commencing on the date as of which such Principal Prepayment
or Insurance and Condemnation Proceeds were applied to the unpaid principal
balance of the Loan and ending on (and including) the day immediately preceding
such Due Date.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Primary Servicer": Any of Heartland Bank, NCCB, Northland, GMAC
Commercial Mortgage Corporation or Continental Wingate or any successors
thereto.
"Primary Servicing Agreement": The Sub-Servicing Agreements dated as
of July 11, 2000, by and among the Pool I Servicer and Heartland Bank, NCCB,
Northland, GMAC Commercial Mortgage Corporation or Continental Wingate, as
Primary Servicers.
"Primary Servicing Fee": With respect to each Loan, the fee payable
to the related Primary Servicer under the Primary Servicing Agreement or to the
Pool I Servicer pursuant to Section 3.11(a), based on the Primary Servicing Fee
Rate.
"Primary Servicing Fee Rate": With respect to the Pool I Servicer
and to each Loan (other than the NCCB Loans) primarily serviced by the Pool I
Servicer, a rate equal to 0.07% per annum; with respect to the Pool II Servicer
and each NCCB Loan, a rate equal to 0.08% per annum; and with respect to the
Pool I Loans primarily serviced by Heartland Bank, 0.03% or 0.12%, as
applicable; GMAC Commercial Mortgage Corporation, 0.07%; Continental Wingate,
0.04%; Northland, 0.07%; and NCCB, 0.06%.
"Principal Distribution Amount": As to any Distribution Date, the
sum of (i) the amount collected or otherwise received on or with respect to
principal of the Loans during the related Due Period and (ii) that portion of
the P&I Advance, if any, made in respect of principal of the Loans with respect
to such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Loan that is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment, other than any amount paid in connection with the release of the
related Mortgaged Property through defeasance.
"Private Certificate": Any Class A-X, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M or Class N Certificate.
"Private Definitive Certificate": Any Private Certificate other than
a Private Global Certificate.
"Private Global Certificates": Any Class A-X Book-Entry Certificate,
Class E Book-Entry Certificate, Class F Book-Entry Certificate, Class G
Book-Entry Certificate, Class H Book-Entry Certificate or Class J Book-Entry
Certificate, so long as such Certificates are in book-entry form.
"Privileged Person": Each holder of a Certificate, each of the
parties to this Agreement, each of the Rating Agencies, each of the
Underwriters, any Person identified to the Trustee as a Certificate Owner or
prospective purchaser of a Certificate upon receipt from such Certificate Owner
or prospective purchaser of an investor certification (which may be in
electronic form), the form of which is attached hereto as Exhibit I, and any
other Person designated by the Depositor. The Trustee shall provide all
Privileged Persons with access to certain restricted information on the Website
(in the case of any Certificate Owner or prospective purchaser, upon receipt of
the Investor Certification) through the use of a restricted mechanism on its
Website.
"Property File": A file prepared by the Servicer or the Special
Servicer with respect to Loans as required under Section 3.12(c) and containing
substantially the information described in Exhibit G-11 hereto.
"Prospectus": The Prospectus dated October 12, 1999, as supplemented
by the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement dated July 27,
2000, relating to the offering of the Public Certificates.
"Public Certificate": Any Class A-1, Class A-2, Class B, Class C or
Class D Certificate.
"Purchase Price": With respect to any Loan to be purchased by a
Mortgage Loan Seller pursuant to Section 7 of the related Mortgage Loan Purchase
Agreement or by FINOVA or FINOVA Capital pursuant to Section 9.3 of the related
FINOVA Mortgage Loan Purchase Agreement, by Llama pursuant to Section 5.1 of the
Llama Mortgage Loan Purchase Agreement, by the Servicer or the Special Servicer
pursuant to Section 3.18(b), or by any Mortgage Loan Seller, the Special
Servicer, the Holders of a majority of the Percentage Interests in the
Controlling Class or the Servicer pursuant to Section 9.01 or to be otherwise
sold pursuant to Section 3.18(c), a price equal to the sum of the following:
(i) the outstanding principal balance of such Loan as of the date of
purchase;
(ii) all accrued and unpaid interest on such Loan at the related
Mortgage Rate in effect from time to time to but not including the Due
Date in the Due Period of purchase (which includes unpaid Servicing Fees
and Primary Servicing Fees);
(iii) all related unreimbursed Servicing Advances plus accrued and
unpaid interest on related Advances at the Reimbursement Rate;
(iv) all related Special Servicing Fees and Workout Fees; and
(v) if such Loan is being purchased by a Mortgage Loan Seller
pursuant to Section 7 of the related Mortgage Loan Purchase Agreement or
by FINOVA or FINOVA Capital pursuant to Section 9.3 of the related FINOVA
Mortgage Loan Purchase Agreement or by Llama pursuant to Section 5.1 of
the Llama Mortgage Loan Purchase Agreement all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Servicer, the
Special Servicer, the Depositor and the Trustee in respect of the Breach
or Defect giving rise to the repurchase obligation, including any expenses
arising out of the enforcement of the repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"QIB Investment Representation Letter": As defined in Section
5.02(b).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Loan, REO Loan or REO
Property, an insurance company or security or bonding company qualified to write
the related Insurance Policy in the relevant jurisdiction and (a) for Pool I
Loans, a minimum claims paying ability rating of at least "A" by S&P and "A" by
Fitch if then rated by Fitch, and for NCCB Loans, a minimum claims paying rating
of at least "A-; V" by A.M. Best and "BBB" by S&P, (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a claims
paying ability rated no lower than two ratings below the rating assigned to the
then highest rated outstanding Certificate, but in no event lower than "A" by
Fitch if then rated by Fitch, "A" by S&P or, in the case of clauses (i) and
(ii), such other rating as each Rating Agency shall have confirmed in writing
will not cause such Rating Agency to downgrade, qualify or withdraw the
then-current rating assigned to any of the Certificates that are then currently
being rated by such Rating Agency.
"Rated Final Distribution Date": As to each Class of Certificates,
other than the Class N Certificates, the Distribution Date occurring in April,
2062.
"Rating Agency": Each of S&P, Fitch, or their successors in
interest. If any of such rating agencies or any successor thereto ceases to
remain in existence, "Rating Agency" shall be deemed to refer to any other
NRSRO, or other comparable Person, designated by the Depositor to replace the
rating agency that has ceased to exist. Notice of such designation shall be
given to the Trustee and the Servicer, and the specific ratings of S&P and Fitch
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Record Date": With respect to any Distribution Date other than the
first Distribution Date, the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs and, with respect to
the first Distribution Date, the Closing Date.
"Reduction Rate": A rate per annum equal to the average of the
Pass-Through Rates of each Class to which an Appraisal Reduction has been
allocated (in accordance with Section 4.05 hereof), weighted on the basis of the
amount of Appraisal Reductions allocated to such Class.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any Public Certificate or Private
Certificate.
"Regulation S Global Certificate": As defined in Section 5.01(a).
"Regulation S Investment Representation Letter": As defined in
Section 5.02(b).
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money Rates" Section of The Wall Street
Journal (or, if such Section or publication is no longer available, such other
comparable publication as is determined by the Trustee in its sole discretion)
as may be in effect from time to time, or, if the "Prime Rate" no longer exists,
such other comparable rate (as determined by the Trustee in its reasonable
discretion) as may be in effect from time to time.
"Related Certificates" and "Related Uncertificated Lower-Tier
Interest": For the following Classes of Uncertificated Lower-Tier Interests, the
related Class of Certificates set forth below and for the following Classes of
Certificates, the related Class of Uncertificated Lower-Tier Interests set forth
below:
Related Uncertificated
Related Certificates Lower-Tier Interest
-------------------- -------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
Class L Certificate Class LL Uncertificated Interest
Class M Certificate Class LM Uncertificated Interest
Class N Certificate Class LN Uncertificated Interest
"Related Components" and "Related Uncertificated Lower-Tier
Interest": For such Classes of Uncertificated Lower-Tier Interests, the related
Components (which are represented by the Class A-X Certificates) set forth below
and for the following Components, the related Class of Uncertificated Lower-Tier
Interests set forth below:
Related Related Uncertificated
Component Lower-Tier Interest
--------- -------------------
Class LA-1 Component Class LA-1 Uncertificated Interest
Class LA-2 Component Class LA-2 Uncertificated Interest
Class LB Component Class LB Uncertificated Interest
Class LC Component Class LC Uncertificated Interest
Class LD Component Class LD Uncertificated Interest
Class LE Component Class LE Uncertificated Interest
Class LF Component Class LF Uncertificated Interest
Class LG Component Class LG Uncertificated Interest
Class LH Component Class LH Uncertificated Interest
Class LJ Component Class LJ Uncertificated Interest
Class LK Component Class LK Uncertificated Interest
Class LL Component Class LL Uncertificated Interest
Class LM Component Class LM Uncertificated Interest
Class LN Component Class LN Uncertificated Interest
"Remaining Principal Distribution Amount": As to any Distribution
Date and any Class of Subordinate Certificates, the amount, if any, by which the
Principal Distribution Amount for such Distribution Date exceeds the aggregate
amount distributed in respect of Principal Distribution Amounts on such
Distribution Date to all Classes senior to such Class.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of Subtitle A of the Code, and
related provisions, and temporary and final regulations and, to the extent not
inconsistent with such temporary and final regulations, proposed regulations,
and published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from
any Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(iv) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar Class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(v) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": A segregated custodial account or accounts created
and maintained by each Special Servicer pursuant to Section 3.16 on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled "Lennar
Partners, Inc., as Special Servicer, in trust for Wells Fargo Bank Minnesota,
N.A., as Trustee, for Holders of Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-C1, REO
Account," with respect to the Loans other than the NCCB Loans, and "National
Consumer Cooperative Bank, as Special Servicer, in trust for Wells Fargo Bank
Minnesota, N.A., as Trustee, for Holders of Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-C1,
REO Account," with respect to the NCCB Loans. Any such account or accounts shall
be an Eligible Account.
"REO Acquisition": With respect to any Loan, the acquisition by the
Trust Fund of REO Property related to such Loan.
"REO Acquisition Date": The date of the Trust Fund's acquisition for
federal income tax purposes of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Loan deemed to be outstanding with respect to each
REO Property. Each REO Loan shall be deemed to be outstanding for so long as the
related REO Property remains part of the Trust Fund, and shall be deemed to
provide for Assumed Scheduled Payments on each Due Date therefor and otherwise
have the same terms and conditions as its predecessor Loan, including, without
limitation, with respect to the calculation of the Mortgage Rate in effect from
time to time (such terms and conditions to be applied without regard to the
default on such predecessor Loan). Each REO Loan shall be deemed to have an
initial outstanding principal balance and Stated Principal Balance equal to the
outstanding principal balance and Stated Principal Balance, respectively, of its
predecessor Loan as of the related REO Acquisition Date. All amounts due and
owing in respect of the predecessor Loan as of the related REO Acquisition Date,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of an REO Loan. All amounts payable or reimbursable to
the Servicer, the Special Servicer or the Trustee, as applicable, in respect of
the predecessor Loan as of the related REO Acquisition Date, including, without
limitation, any unpaid Special Servicing Fees and Servicing Fees and any
unreimbursed Advances, together with any interest accrued and payable to the
Servicer or the Trustee in respect of such Advances in accordance with Section
3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the
Servicer or the Trustee in respect of an REO Loan. Collections in respect of
each REO Loan (exclusive of amounts to be applied to the payment of, or to be
reimbursed to the Servicer or the Special Servicer for the payment of, the costs
of operating, managing and maintaining the related REO Property) shall be
treated: first, as a recovery of accrued and unpaid Advances, Primary Servicing
Fees and Servicing Fees and related interest due the Servicer or the Trustee, as
applicable; second, as a recovery of accrued and unpaid interest on such REO
Loan at the related Mortgage Rate to but not including the Due Date in the Due
Period of receipt; third, as a recovery of principal of such REO Loan to the
extent of its entire unpaid principal balance; and fourth, in accordance with
the Servicing Standard of the Servicer, as a recovery of any other amounts due
and owing in respect of such REO Loan, including, without limitation, Yield
Maintenance Charges, Prepayment Premiums and Penalty Charges.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of and in the name of the Trustee (or its nominee) for the
benefit of the Certificateholders through foreclosure, acceptance of a deed in
lieu of foreclosure or otherwise in accordance with applicable law in connection
with the default or imminent default of a Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property (including, with respect to
the L'Enfant Mortgage Loan and the 1211 Avenue of the Americas Mortgage Loan, as
the case may be, if the Lead Lender thereof has foreclosed upon the related
Mortgaged Property, the pro rata portion allocable to the L'Enfant Mortgage Loan
and the 1211 Avenue of the Americas Mortgage Loan of any amount remitted by the
Lead Lender pursuant to the related Co-Lender Agreement constituting revenues
received with respect to such foreclosed Mortgaged Property, which do not
constitute Liquidation Proceeds).
"REO Status Report": A report prepared by a Special Servicer,
substantially containing the information described in Exhibit G-5 attached
hereto, setting forth, among other things, with respect to each REO Property
that was included in the Trust Fund as of the close of business on the
Determination Date immediately preceding the preparation of such report, (i) the
acquisition date of such REO Property, (ii) the amount of income collected with
respect to any REO Property net of related expenses and other amounts, if any,
received on such REO Property during the related Due Period and (iii) the value
of the REO Property based on the most recent appraisal or other valuation
thereof available to the Special Servicer as of such date of determination
(including any prepared internally by the Special Servicer).
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial
Trustee, any Vice President, Assistant Vice President, corporate trust officer
or assistant corporate trust officer of the Trustee having direct responsibility
for the administration of this Agreement, and with respect to any successor
Trustee, any officer or assistant officer in the corporate trust department of
the Trustee or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject.
"Restricted Servicer Reports": Collectively, the Comparative
Financial Status Report, the Servicer Watch List, the Operating Statement
Analysis Report, the Asset Status Report and NOI Adjustment Worksheet.
"Revised Rate": With respect to the Loans, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for each
applicable Loan, as calculated and as set forth in the related Loan.
"Rule 144A Global Certificate": As defined in Section 5.01(a).
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage or
executed separately, creating in favor of the holder of such Mortgage a security
interest in the personal property constituting security for repayment of such
Loan.
"Security Position Listing": A listing prepared by the Depository of
the holdings of Depository Participants with respect to the Certificates.
"Servicer": Either the Pool I Servicer or the Pool II Servicer. As
used herein, the term "Servicer" shall refer to the Pool I Servicer with respect
to the Loans other than the NCCB Loans and to the Pool II Servicer with respect
to the NCCB Loans.
"Servicer Remittance Date": With respect to any Distribution Date,
the Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer
and/or the Special Servicer in such media as may be agreed upon by the Servicer,
the Special Servicer and the Trustee containing such information regarding the
Loans as will permit the Trustee to calculate the amounts to be distributed
pursuant to Section 4.01 and to furnish statements to Certificateholders
pursuant to Section 4.02, including information on the outstanding principal
balances of each Loan specified therein, and containing such additional
information as the Servicer, the Special Servicer and the Trustee may from time
to time agree.
"Servicer Watch List": A report prepared by the Servicer
substantially containing the information described in Exhibit G-6 attached
hereto, setting forth, among other things, a description of any Loan that, as of
the Determination Date immediately preceding the preparation of such report, is
in jeopardy of becoming a Specially Serviced Loan (as described in Section
3.12(e)).
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer in connection with the
servicing and administering of (a) a Loan in respect of which a default,
delinquency or other unanticipated event has occurred or is reasonably
foreseeable (including any reimbursements to the L'Enfant Servicer or the 1211
Avenue of the Americas Servicer on account of the Trust Fund's pro rata portion
of any servicing advance made by such L'Enfant Servicer or the 1211 Avenue of
the Americas Servicer on account of the related L'Enfant Mortgage Loan or 1211
Avenue of the Americas Mortgage Loan, as the case may be) or (b) an REO
Property, including, in the case of both (a) and (b), but not limited to, the
cost of (i) compliance with the Servicer's obligations set forth in Section
3.03(c), (ii) the preservation, restoration and protection of a Mortgaged
Property, (iii) obtaining any Insurance and Condemnation Proceeds or any
Liquidation Proceeds of the nature described in clauses (i) through (iv) of the
definition of "Liquidation Proceeds," (iv) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including foreclosures, (v)
the operation, leasing, management, maintenance and liquidation of any REO
Property, (vi) any Appraisal, and (vii) any "forced placed" insurance policy
purchased.
"Servicing Fee": With respect to each Loan and REO Loan, the fee
payable to the Servicer pursuant to the first paragraph of Section 3.11(a).
"Servicing Fee Rate": With respect to the Pool I Servicer and each
Loan (other than the NCCB Loans), Specially Serviced Loan, and REO Loan, a rate
equal to 0.05% per annum computed on the basis of a 360-day year consisting of
twelve 30-day months on the Stated Principal Balance of the related Loan. With
respect to the Pool II Servicer and each NCCB Loan, a rate equal to 0.06% per
annum computed on the same basis as the related NCCB Loan on the Stated
Principal Balance of such NCCB Loan (including any related REO Loans and
Specially Serviced Loans).
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Loans, whose name and specimen signature appear on a list of
servicing officers furnished by the Servicer to the Trustee and the Depositor on
the Closing Date as such list may be amended from time to time thereafter.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Loan, the occurrence
of any of the following events:
(i) a payment default shall have occurred on such Loan at its
Maturity Date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60 days
or more delinquent; or
(iii) the Servicer determines that a payment default has occurred or
is imminent and is not likely to be cured by the related Mortgagor within
60 days; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs
is entered against the related Mortgagor; provided that if such decree or
order is discharged or stayed within 60 days of being entered, such Loan
shall not be a Specially Serviced Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect thereto); or
(v) the related Mortgagor shall file for or consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or relating to all or
substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property; or
(viii) any other default has occurred which has materially and
adversely affected the value of the related Loan and has continued
unremedied for the applicable grace period specified in the related
Mortgage.
"Significant Loan": At any time, (a) any Loan (i) whose principal
balance is $20,000,000 or more at such time or (ii) that is (x) a Loan, (y) part
of a group of Crossed Loans or (z) part of a group of Loans made to affiliated
Borrowers that, in each case, in the aggregate, represents 5% or more of the
aggregate outstanding principal balance of all of the Loans at such time or (b)
any one of the ten largest Loans, (which for the purposes of this definition
shall include groups of Crossed Loans and groups of Loans made to affiliated
Borrowers) by outstanding principal balance at such time.
"Similar Law": As defined in Section 5.02(e).
"Single-Purpose Entity" or "SPE": A person, other than an
individual, whose organizational documents provide that it is formed solely for
the purpose of owning and pledging Defeasance Collateral; does not engage in any
business unrelated to such Defeasance Collateral; does not have any assets other
than those related to its interest in the Defeasance Collateral and may not
incur any indebtedness other than as required to assume the defeased obligations
under the related Note; it shall maintain its own books, records and accounts,
in each case which are separate and apart from the books, records and accounts
of any other Person; it shall hold regular meetings, as appropriate, to conduct
its business, and shall observe all entity level formalities and recordkeeping;
it shall conduct business in its own name and use separate stationery, invoices
and checks; it may not guarantee or assume the debts or obligations of any other
Person; it shall not commingle its assets or funds with those of any other
Person; it shall pay its obligations and expenses from its own funds and
allocate and charge reasonably and fairly any common employees or overhead
shared with Affiliates; it shall prepare separate tax returns and financial
statements or, if part of a consolidated group, shall be shown as a separate
member of such group; it shall transact business with Affiliates on an
arm's-length basis pursuant to written agreements; and it shall hold itself out
as being a legal entity, separate and apart from any other Person. The SPE's
organizational documents shall provide that any dissolution and winding up or
insolvency filing for such entity requires the unanimous consent of all partners
or members, as applicable, and that such documents may not be amended with
respect to the Single-Purpose Entity requirements so long as any Certificates
are outstanding.
"S&P": Standard & Poor's Ratings Services, and its successors in
interest.
"Special Events": As defined in Section 4.02(b).
"Special Servicer": Either the Pool I Special Servicer or the Pool
II Special Servicer. As used herein, the term "Special Servicer" shall refer to
the Pool I Special Servicer with respect to the Loans other than the NCCB Loans
and to the Pool II Special Servicer with respect to the NCCB Loans.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and REO Loan, the fee payable to the Special Servicer pursuant to the first
paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% per annum computed on the basis of the
Stated Principal Balance of the related Loan and for the same period for which
any related interest payment on the related Specially Serviced Loan is computed,
as more particularly described in Section 3.11.
"Specially Serviced Loan": As defined in Section 3.01(a).
"Startup Day": The Closing Date.
"State Tax Laws": The state and local tax laws of any state, the
applicability of which to the Trust Fund or the REMICs shall have been confirmed
to the Trustee in writing either by the delivery to the Trustee of an Opinion of
Counsel to such effect (which Opinion of Counsel shall not be at the expense of
the Trustee), or by the delivery to the Trustee of a written notification to
such effect by the taxing authority of such state.
"Stated Principal Balance": With respect to any Loan (other than an
REO Loan), as of any date of determination, an amount equal to (x) the Cut-off
Date Principal Balance of such Loan, plus (y) any Mortgage Deferred Interest
added to the principal balance of such Loan on or before the end of the
immediately preceding Due Period, minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such Loan
after the Cut-off Date, to the extent received from the Mortgagor or
advanced by the Servicer or Trustee, as applicable, and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such Loan
after the Cut-off Date, to the extent distributed to Certificateholders on
or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such Loan after
the Cut-off Date, to the extent distributed to Certificateholders on or
before such date of determination;
(iv) any reduction in the outstanding principal balance of such Loan
resulting from a Deficient Valuation that occurred prior to the end of the
Due Period for the most recent Distribution Date; and
(v) any reduction in the outstanding principal balance of such Loan
due to a modification by the Special Servicer pursuant to Section 3.20(d).
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Loan as of
the related REO Acquisition Date, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to an
REO Loan on or after the related REO Acquisition Date, to the extent
distributed to Certificateholders on or before such date of determination;
and
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Loan or an REO Loan shall be deemed to be part of the Trust Fund
and to have an outstanding Stated Principal Balance until the Distribution Date
on which the payments or other proceeds, if any, received in connection with a
Liquidation Event in respect thereof are to be distributed to
Certificateholders.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Sub-Servicer": Any Person with which the Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement, including any Primary
Servicer.
"Sub-Servicing Agreement": The subservicing agreements between the
Servicer or the Special Servicers, as the case may be, and any Sub-Servicer
relating to servicing and administration of Loans by such Sub-Servicer as
provided in Section 3.22, including any Primary Servicing Agreement.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M or Class N
Certificate.
"Successful Bidder": As defined in Section 7.01(e).
"Successor Manager": As defined in Section 3.19(c).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC created hereunder due to its classification
as a REMIC under the REMIC Provisions, and Forms 1041 for the portions of the
Trust Fund intended to be treated as a grantor trust for federal income tax
purposes, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal or State Tax Laws.
"Termination Notice": As defined in Section 7.01(b).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(g)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(g)(i)(D).
"Treasury Rate": With respect to any Principal Prepayment made on a
Loan, the yield calculated by the linear interpolation of the yields reported in
Federal Reserve Statistical Release H.15 Selected Interest Rates (the "Release")
under the heading "U.S. government securities" and the subheading "Treasury
constant maturities" for the week ending immediately before the related
Prepayment Date, of U.S. Treasury constant maturities with maturity dates (one
longer and one shorter) most nearly approximating the Maturity Date of such Loan
(or, if such Loan is an ARD Loan, the related Anticipated Repayment Date). If
the Release is no longer published, the Servicer shall select a comparable
publication to determine the Treasury Rate in its reasonable discretion.
"Trust": As defined in the Preliminary Statement.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Loans subject to this Agreement
and all interest and principal received or receivable on or with respect to the
Loans (other than payments of principal and interest due and payable on the
Loans on or before the Cut-off Date and Principal Prepayments paid on or before
the Cut-off Date), together with all documents included in the related Mortgage
Files; (ii) such funds or assets as from time to time are deposited in the
Collection Account, the Distribution Accounts, the Excess Interest Distribution
Account, the Interest Reserve Account and, if established, the REO Account;
(iii) any REO Property; (iv) the rights of the mortgagee under all Insurance
Policies with respect to the Loans, (v) the Uncertificated Lower-Tier Interests
and (vi) the rights of the Depositor under the Mortgage Loan Purchase
Agreements.
"Trust Fund Note": With respect to the 1211 Avenue of the Americas
Mortgage Loan, the Note included in the Trust Fund, and with respect to the
L'Enfant Mortgage Loan, the Note included in the Trust Fund and with respect to
the Crystal Pavilion/Petry Building Mortgage Loan, the Note included in the
Trust Fund.
"Trustee": Wells Fargo Bank Minnesota, N.A., a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement.
"Trustee Fee Rate": A rate equal to 0.0031% per annum computed on
the basis of a 360-day year consisting of twelve 30-day months on the Stated
Principal Balance of the related Loan.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1, Class
LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH,
Class LJ, Class LK, Class LL, Class LM and Class LN Uncertificated Interests.
"Uncovered Prepayment Interest Shortfall": As to any Distribution
Date and any Loan as to which a Principal Prepayment is made, the amount, if
any, by which the Prepayment Interest Shortfall relating to a Principal
Prepayment, if any, for such Loan as of such Distribution Date exceeds the sum
of (i) the Servicing Fee attributable to such Loan (other than a Specially
Serviced Loan and other than any Loans described in the proviso in the last
paragraph of Section 3.11(a) in connection with a Principal Prepayment described
therein) and (ii) the investment income accruing on the related Principal
Prepayment (other than any Principal Prepayment described in the proviso in the
last paragraph of Section 3.11(a)) and due to the Servicer for the period from
the date of such prepayment to the end of the related Due Period (or, in the
case of a Specially Serviced Loan, for the period from the date of such
prepayment to the Due Date immediately preceding such Distribution Date);
provided that, the calculation above shall not apply if the Loan Documents allow
prepayment on a date other than a Due Date.
"Uncovered Prepayment Interest Shortfall Amount": As to any
Distribution Date, the amount, if any, by which (i) the sum of the Uncovered
Prepayment Interest Shortfalls, if any, for such Distribution Date exceeds (ii)
the aggregate amount of Prepayment Interest Excesses, if any, on all Loans for
such Distribution Date.
"Underwriters": Collectively, Credit Suisse First Boston Corporation
and Morgan Stanley & Co. Incorporated.
"Underwritten Debt Service Coverage Ratio": As listed on Exhibit J
hereto.
"Underwritten Net Cash Flow": With respect to any Loan or Mortgaged
Property (other than residential cooperative properties and any Loan secured
thereby), cash flow available for debt service, as determined by the applicable
Mortgage Loan Seller based on borrower-supplied information or an appraisal for
a recent period that is generally calendar year 1999 or the most recent
twelve-month period preceding the origination date. Underwritten Net Cash Flow
in the case of residential cooperative properties generally equals projected net
operating income at such residential cooperative property, as determined by the
Appraisal obtained in connection with the origination of the related Mortgage
Loan, assuming such residential cooperative property was operated as a rental
property with rents set at prevailing market rates taking into account the
presence of existing rent controlled or rent stabilized occupants, reduced by
underwritten capital expenditures, a market-rate vacancy assumption and
projected reserves.
"Unpaid Interest Shortfall Amount": As to the first Distribution
Date and any Class of Regular Certificates, zero. As to any Distribution Date
after the first Distribution Date and any Class of Regular Certificates, the
amount, if any, by which the sum of the Interest Shortfall Amounts for such
Class for prior Distribution Dates exceeds the sum of the amounts distributed on
such Class on prior Distribution Dates in respect of such Interest Shortfall
Amounts.
"Unrestricted Servicer Reports": Collectively, the Delinquent Loan
Status Report, Historical Loan Modification Report, Historical Loss Estimate
Report and REO Status Report.
"Upper-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Trustee, pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "Wells
Fargo Bank Minnesota, N.A., as Trustee, for the Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2000-C1, Upper-Tier Distribution Account." Any such account or accounts
shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any State thereof or the District of Columbia
(other than a partnership that is not treated as a United States person under
any applicable Treasury regulations), or an estate whose income is subject to
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have
authority to control all substantial decisions of the trust. Notwithstanding the
preceding sentence, to the extent provided in regulations, certain trusts in
existence on August 20, 1996 and treated as United States persons prior to such
date that elect to continue to be so treated also shall be considered U.S.
Persons.
"Voting Rights": The portion of the voting rights of all of the
Certificates, which is allocated to any Certificate. At all times during the
term of this Agreement and for any date of determination, the Voting Rights
shall be allocated among the various Classes of Certificateholders as follows:
(i) 2% in the case of the Class A-X Certificates, and (ii) in the case of any
other Class of Regular Certificates a percentage equal to the product of 98% and
a fraction, the numerator of which is equal to the aggregate Certificate Balance
of such Class, in each case, determined as of the Distribution Date immediately
preceding such date of determination, and the denominator of which is equal to
the aggregate Certificate Balance of the Regular Certificates, each determined
as of the Distribution Date immediately preceding such date of determination.
None of the Class V-1, Class V-2, Class R or Class LR Certificates will be
entitled to any Voting Rights. For purposes of determining Voting Rights, the
Certificate Balance of any Class shall be deemed to be reduced by allocation of
the Collateral Support Deficit to such Class, but not by Appraisal Reductions
allocated to such Class. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates.
"Website": The internet website maintained by the Trustee initially
located at "www.ctslink.com/CMBS" or the internet website of the Pool I Servicer
at "www.capmarkservices.com."
"Weighted Average Net Mortgage Rate": As to any Distribution Date,
the average, as of such Distribution Date, of the Net Mortgage Pass-Through
Rates of the Loans, weighted by the Stated Principal Balances thereof.
"Whole Loan": With respect to the 1211 Avenue of the Americas
Mortgage Loan, the L'Enfant Mortgage Loan and the Crystal Pavilion/Petry
Building Mortgage Loan, the entire indebtedness secured by the related Mortgaged
Property.
"Withheld Amounts": As defined in Section 3.29(a).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Loan.
"Workout Fee Rate": As defined in Section 3.11(b).
"Yield Maintenance Charge": With respect to any Loan, the yield
maintenance charge set forth in the related Loan, including but not limited to a
yield maintenance charge which is based on the amount of Defeasance Collateral.
If a Yield Maintenance Charge becomes due for any particular Loan, the Servicer
shall be required to follow the terms and provisions contained in the applicable
Loan Documents; provided, however, that if the related Loan Documents do not
specify which U.S. Treasury obligations are to be used in determining the
discount rate or the reinvestment yield to be applied in such calculation, or if
the related Loan Documents are ambiguous, the Servicer shall be required to use
those U.S. Treasury obligations that will generate the lowest discount rate or
reinvestment yield for the purposes thereof. Accordingly, if either no U.S.
Treasury obligation, or more than one U.S. Treasury obligation, coincides with
the term over which the Yield Maintenance Charge is to be calculated (which,
depending on the applicable Loan Documents, is based on the remaining average
life of the Loan or the actual term remaining through the Maturity Date), the
Servicer shall use the U.S. Treasury obligations whose reinvestment yield is the
lowest, with such yield being based on the bid price for such issue as published
in The Wall Street Journal on the date that is fourteen (14) days prior to the
date that the Yield Maintenance Charge becomes due and payable (or, if such bid
price is not published on that date, the next preceding date on which such bid
price is so published) and converted to a monthly compounded nominal yield. The
monthly compounded nominal yield ("MEY") is derived from the reinvestment yield
or discount rate and shall be defined as MEY = (12 x [{(1+BEY/2)1/6}-1]) x 100
where BEY is defined as the U.S. Treasury Reinvestment Yield in decimal, not
percentage, form, and 1/6 is the exponential power to which a portion of the
equation is raised. For example, using a BEY of 5.50%, the MEY = (12 x [{(1 +
0.055/2) 0.16667}-1]) x 100, where 0.055 is the decimal version of the
percentage 5.50%, and 0.16667 is the decimal version of the exponential power.
(The MEY calculated in the above example is 5.438%.)
"Yield Rate": With respect to any Loan (other than Loan Nos. 40, 56,
59, 64, 91 and 119, as to which it is equal to the yield rate set forth in the
related loan documents), a rate equal to a per annum rate 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 prepayment of any Mortgage Loan, of U.S. Treasury constant
maturities with maturity dates (one longer, one shorter) most nearly
approximating the maturity date (or, with respect to ARD Loans, the Anticipated
Repayment Date) of the Mortgage Loan being prepaid or the monthly equivalent of
such rate. If Federal Reserve Statistical Release H.15 - Selected Interest Rates
is no longer published, the Servicers, on behalf of the Trustee, will select a
comparable publication to determine the Yield Rate with respect to their related
Mortgage Loans.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest with respect to the Loans (other
than the Actual/360 Loans) and of Advances provided for herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months.
All calculations of interest with respect to the Actual/360 Loans and
Advances provided for herein shall be made as set forth in such Loan with
respect to the calculation of interest accruing at the related Mortgage
Rate.
(ii) Any Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, the Special Servicer or the
Trustee; provided, however, that for purposes of calculating distributions
on the Certificates, (i) any voluntary Principal Prepayment made on a date
other than the related Due Date and in connection with which the Servicer
has collected interest thereon through the end of the related Mortgage
Interest Accrual Period shall be deemed to have been made, and the
Servicer shall apply such Principal Prepayment to reduce the outstanding
principal balance of the related Loan as if such Principal Prepayment had
been received, on the following Due Date and (ii) all other Principal
Prepayments with respect to any Loan are deemed to be received on the date
they are applied to reduce the outstanding principal balance of such Loan.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class on such Distribution Date pursuant to
Section 4.04 and (c) the addition of any Certificate Deferred Interest
allocated to such Class and added to such Certificate Balance pursuant to
Section 4.06(b) (except that no such increase in Certificate Balance
pursuant to this clause (c) shall count for the purposes of determining
Voting Rights or the identity of the Controlling Class).
(iv) To the extent that any reports or worksheets required to be
prepared with respect to the Pool II Loans require the use of a debt
service coverage ratio for any Loan or the net operating income for any
Mortgaged Property, such reports shall be prepared using the Debt Service
Coverage Ratio for such Loan or Net Operating Income for such Mortgaged
Property, as the case may be.
Section 1.03 Loan Identification Convention.
Loans shall be identified in this Agreement by reference to their
respective loan numbers, as set forth under the column heading "Loan #" in Annex
A to the Prospectus Supplement.
<PAGE>
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, without recourse, for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under (i) the Loans
identified on the Mortgage Loan Schedule, (ii) the Mortgage Loan Purchase
Agreements (including rights under the FINOVA Mortgage Loan Purchase Agreements
and the Llama Mortgage Loan Purchase Agreement assigned under the MSDWMC
Mortgage Loan Purchase Agreement) and (iii) all other assets included or to be
included in the Trust Fund. Such assignment includes all interest and principal
received or receivable on or with respect to the Loans (other than payments of
principal and interest due and payable on the Loans on or before the Cut-off
Date and Principal Prepayments paid on or before the Cut-off Date). The transfer
of the Loans and the related rights and property accomplished hereby is absolute
and, notwithstanding Section 10.07, is intended by the parties to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed each Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with the Trustee (with a copy to the Trustee, the
Servicer and the Special Servicer), on or before the Closing Date, the Mortgage
File (except item (xvi) in the definition of Mortgage File, which shall be
delivered to and deposited with the related Servicer) for each Loan so assigned.
If a Mortgage Loan Seller cannot deliver, or cause to be delivered as to any
Loan, the original Note, such Mortgage Loan Seller shall deliver a copy or
duplicate original of such Note, together with an affidavit substantially in the
form attached as Exhibit H hereto, certifying that the original thereof has been
lost or destroyed.
If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Loan, any of the documents and/or instruments referred
to in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation, the delivery requirements of the related Mortgage
Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied and such non-delivered document or instrument shall be deemed to have
been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by such Mortgage Loan Seller to
be a true and complete copy of the original thereof submitted for recording) is
delivered to the Trustee, and the Servicer on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office to be a true and
complete copy of the original thereof submitted for recording), with evidence of
recording thereon, is delivered to the Trustee within 120 days of the Closing
Date, which period may be extended up to two times, in each case for an
additional period of 45 days provided that such Mortgage Loan Seller, as
certified in writing to the Trustee prior to each such 45-day extension, is in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy.
If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Loan, any of the documents and/or instruments referred
to in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of recording thereon, for any other reason,
including, without limitation, that such non-delivered document or instrument
has been lost, the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(b) shall be deemed to have been satisfied and
such non-delivered document or instrument shall be deemed to have been included
in the Mortgage File if a photocopy of such non-delivered document or instrument
(with evidence of recording thereon and certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Trustee and to the Servicer on or
before the Closing Date.
None of the Trustee or the Servicers shall be liable for any failure
by any Mortgage Loan Seller or the Depositor to comply with the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b). Notwithstanding the foregoing, if any Mortgage Loan Seller fails to
deliver a UCC-2 or UCC-3 on or before the Closing Date as required above solely
because the related UCC-1 has not been returned to such Mortgage Loan Seller by
the applicable filing office, such Mortgage Loan Seller shall not be in breach
of its obligations with respect to such delivery, provided that the Mortgage
Loan Seller promptly forwards such UCC-1 to the Trustee (with a copy to the
Servicer) upon its return, together with the related original UCC-2 or UCC-3 in
a form appropriate for filing.
(c) At the expense of the related Mortgage Loan Seller, the Trustee
shall, as to each Loan, use its best efforts to promptly (and in any event no
later than the later of (i) 90 days after the Closing Date and (ii) 60 days from
receipt of documents in recordable form, including, without limitation, all
necessary recording and filing information) cause to be submitted for recording
or filing, as the case may be, each assignment referred to in clauses (ii),
(iii), (iv), (v) and (vii) of the definition of "Mortgage File" and each UCC-2
or UCC-3 referred to in clause (xi) of the definition of "Mortgage File." Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 or UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee following
filing. If any such document or instrument is lost or returned unrecorded or
unfiled because of a defect therein, the Trustee shall prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Trustee shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate. Within 30 days following request for
reimbursement, the Depositor shall reimburse the Trustee for all of its costs
and expenses incurred in performing its obligation under this Section 2.01(c).
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Loans (including reserve and
escrow agreements, cash management agreements, lockbox agreements, financial
statements, operating statements and any other information provided by the
respective Mortgagor from time to time) that are not required to be a part of a
Mortgage File in accordance with the definition thereof shall be delivered to
the Servicer within 30 days of the Closing Date and shall be held by the
Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Loans in the name
of such Mortgage Loan Seller or any other name to be transferred to the Servicer
(or a Sub-Servicer at the direction of the Servicer) for deposit into Servicing
Accounts.
(g) Each of the 1211 Avenue of the Americas Mortgage Loan, the
L'Enfant Mortgage Loan and the Crystal Pavilion/Petry Building Mortgage Loan is
secured by a Mortgaged Property which serves as security for the Trust Fund Note
and the related Other Note. With respect to the 1211 Avenue of the Americas
Mortgage Loan, the related Other Note, which is divided into five components,
four of which (the "1211 Avenue of the Americas Subordinate Components") shall
be subordinate to the 1211 Avenue of the Americas Trust Fund Note and one of
which shall be pari passu with the 1211 Avenue of the Americas Trust Fund Note,
is included in a trust fund (the "1211 Avenue of the Americas Other Trust Fund")
created in connection with issuance of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2000-1211. With respect to the L'Enfant
Mortgage Loan, one of the L'Enfant Other Notes is included in a trust fund (the
"L'Enfant I Other Trust Fund") created in connection with issuance of the
Depositor's Commercial Mortgage Pass-Through Certificates, Series 1998-C2 and
the other L'Enfant Other Note is included in a trust fund (the "L'Enfant II
Other Trust Fund") created in connection with issuance of the Depositor's
Commercial Mortgage Pass-Through Certificates, Series 1999-C1. With respect to
the Crystal Pavilion/Petry Building Mortgage Loan, the Other Notes shall be
shall be pari passu with the Crystal Pavilion/Petry Building Trust Fund Note and
are held by the CSFB Mortgage Loan Seller.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it, subject to the provisions of Sections 2.01 and
2.02(d), to any exceptions noted on the Trustee Exception Report, and to the
further review provided for in Section 2.02(b), of the Notes, fully executed
original counterparts of the Mortgage Loan Purchase Agreements and of all other
assets included in the Trust Fund, in good faith and without notice of any
adverse claim, and declares that it holds and will hold such documents and any
other documents delivered or caused to be delivered by the Mortgage Loan Sellers
constituting the Mortgage Files, and that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders.
(b) Within 90 days of the Closing Date, the Trustee shall review
and, subject to Sections 2.01 and 2.02(d), certify in writing to each of the
Depositor, the Servicer, the Special Servicer, the Trustee and the applicable
Mortgage Loan Seller that, as to each Loan listed in the Mortgage Loan Schedule
(other than any Loan paid in full, any Loan specifically identified in any
exception report annexed thereto as not being covered by such certification, or
the L'Enfant Mortgage Loan or the 1211 Avenue of the Americas Mortgage Loan),
(i) all documents specified in clauses (i) through (v), (ix) (without regard to
the parenthetical clause), (xi) and (xii) of the definition of "Mortgage File"
are in its possession, and (ii) all documents delivered or caused to be
delivered by such Mortgage Loan Seller constituting the Mortgage Files have been
received, have been executed, appear to be what they purport to be, purport to
be recorded or filed (if recordation or filing is specified for such document in
the definition of "Mortgage File") and have not been torn, mutilated or
otherwise defaced, and that such documents relate to the Loans identified on the
Mortgage Loan Schedule.
(c) The Trustee shall review each of the Loan Documents received
after the Closing Date; and, on or about 90 days following the Closing Date, 180
days following the Closing Date, the first anniversary of the Closing Date, 180
days following the first anniversary of the Closing Date, 270 days following the
first anniversary of the Closing Date and on the second anniversary of the
Closing Date, the Trustee shall, subject to Sections 2.01 and 2.02(d), certify
in writing to each of the Depositor, the Servicer, the Special Servicer and the
Mortgage Loan Seller that, as to each Loan listed on the Mortgage Loan Schedule
(other than the L'Enfant Mortgage Loan, the 1211 Avenue of the Americas Mortgage
Loan, any Loan as to which a Liquidation Event has occurred or any Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in clauses (i)
through (v), (ix) (without regard to the parenthetical clause), (xi), (xii) and
(xxi) of the definition of "Mortgage File" are in its possession, (ii) it has
received either a recorded original of each of the assignments specified in
clause (iii) and clause (v) of the definition of "Mortgage File," insofar as an
unrecorded original thereof had been delivered or caused to be delivered by the
applicable Mortgage Loan Seller or a copy of such recorded original certified by
the applicable public recording office to be true and complete, and (iii) all
such Loan Documents have been received, have been executed, appear to be what
they purport to be, purport to be recorded or filed (if recordation or filing is
specified for such document in the definition of "Mortgage File") and have not
been torn, mutilated or otherwise defaced, and that such documents relate to the
Loans identified on the Mortgage Loan Schedule. The Trustee shall, upon request,
provide the Servicer with recording and filing information as to recorded
Mortgages, Assignment of Lease and UCC financing statements promptly after the
Trustee receives them from the related recording offices.
(d) It is herein acknowledged that the Trustee is not under any duty
or obligation (i) to determine whether any of the documents specified in clauses
(vi), (vii), (viii), (x), (xiii) through (xxi) of the definition of "Mortgage
File" exist or are required to be delivered by the Depositor, a Mortgage Loan
Seller or any other Person other than to the extent identified on the related
Mortgage Loan Schedule, (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Loans delivered to it
to determine that the same are valid, legal, effective, in recordable form,
genuine, enforceable, sufficient or appropriate for the represented purpose or
that they are other than what they purport to be on their face or (iii) to
determine whether any omnibus assignment specified in clause (vii) of the
definition of "Mortgage File" is effective under applicable law.
(e) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee finds that (a) any document required to be included
in the Mortgage File is not in its possession or (b) such document has not been
properly executed or is otherwise defective on its face (each, a "Defect" in the
related Mortgage File), the Trustee shall promptly so notify the Depositor, the
Servicer, the Special Servicer and the Mortgage Loan Sellers, by providing a
written report (the "Trustee Exception Report") setting forth for each affected
Loan, with particularity, the nature of such Defect. The Trustee shall not be
required to verify the conformity of any document with the Mortgage Loan
Schedule, except that such documents have been properly executed or received,
have been recorded or filed (if recordation is specified for such document in
the definition of "Mortgage File"), appear to be related to the Loans identified
on the Mortgage Loan Schedule, appear to be what they purport to be, or have
been torn, mutilated or otherwise defaced.
(f) Upon the second anniversary of the Closing Date, the Trustee
shall deliver a final exception report as to any remaining Defects or required
Loan Documents that are not in its possession and that it was required to review
pursuant to Section 2.01(c).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase of Loans by the Mortgage Loan Sellers, FINOVA, FINOVA
Capital and Llama for Defects in Mortgage Files and Breaches of Representations
and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Loans in accordance
with this Agreement; the Depositor has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement;
(ii) Assuming the due authorization, execution and delivery of
this Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Loans or the ability
of the Depositor to carry out the transactions contemplated by this
Agreement;
(v) The Depositor is the lawful owner of the Loans free and clear
of any liens, pledges, charges or security interests of any nature
encumbering such Loan with the full right to transfer the Loans to the
Trust Fund and upon the assignment of the Loans to the Trust, the Loans
will be validly transferred to the Trust;
(vi) Following consummation of the conveyance of the Loans by the
Depositor to the Trustee, the Depositor shall take no action inconsistent
with the Trust Fund's ownership of the Loans, and if a third party,
including a potential purchaser of the Loans, should inquire, the
Depositor shall promptly indicate that the Loans have been sold and shall
claim no ownership interest therein; and
(vii) Each Loan is a "qualified mortgage" within the meaning of
Code Section 860G(a)(3) (but without regard to the rule in Treasury
Section 1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage).
(b) If any Certificateholder, the Pool I Servicer, the Pool I
Special Servicer, the Pool II Servicer, the Pool II Special Servicer or the
Trustee discovers or receives notice of a breach of any representation or
warranty set forth in, or required to be made with respect to a Loan by any
Mortgage Loan Seller, FINOVA, FINOVA Capital or Llama pursuant to the related
Mortgage Loan Purchase Agreement, related FINOVA Mortgage Loan Purchase
Agreement or the related Llama Mortgage Loan Purchase Agreement, as applicable
(a "Breach"), it shall give notice to the Pool I Servicer, the Pool I Special
Servicer, the Pool II Servicer, the Pool II Special Servicer and the Trustee. If
the Pool I Servicer or the Pool I Special Servicer determines that such Breach
materially and adversely affects the value of any Loan or the interests of the
Certificateholders therein, it shall give prompt written notice of such Breach
to the Depositor, the Trustee, the Pool I Servicer, the Pool I Special Servicer,
the Pool II Servicer, the Pool II Special Servicer, the applicable Mortgage Loan
Seller and, in the event of a Breach by FINOVA, FINOVA Capital or Llama, to
FINOVA, FINOVA Capital and Llama, and shall request that (A) such Mortgage Loan
Seller, FINOVA, FINOVA Capital or Llama, as applicable, or (B) in the event the
CSFB Mortgage Loan Seller shall fail to act, Credit Suisse First Boston, acting
through the Cayman Branch, not later than (i) the earlier of 90 days from the
receipt by the applicable Mortgage Loan Seller, FINOVA, FINOVA Capital or Llama
of such notice or discovery by such Mortgage Loan Seller, FINOVA, FINOVA Capital
or Llama of such Breach and (ii) in the case of the FINOVA Loans, the expiration
of an additional 90 days, if granted by the Trustee in accordance with the terms
of the FINOVA Mortgage Loan Purchase Agreements, cure such Breach in all
material respects or repurchase the affected Loan at the applicable Purchase
Price or in conformity with the related Mortgage Loan Purchase Agreement.
If any Certificateholder, the Servicer, the Special Servicer or the
Trustee discovers or receives notice of a Defect in any Mortgage File, such
party shall give notice to the Pool I Servicer, the Pool I Special Servicer, the
Pool II Servicer, the Pool II Special Servicer and the Trustee. If the Pool I
Servicer or the Pool I Special Servicer determines that such Defect materially
and adversely affects the value of any Loan or the interests of the
Certificateholders therein, it shall give prompt written notice of such Defect
to the Depositor, the Trustee, the Pool I Servicer, the Pool I Special Servicer,
the Pool II Servicer, the Pool II Special Servicer and the applicable Mortgage
Loan Seller and shall request that (i) such Mortgage Loan Seller or (ii) in the
event the CSFB Mortgage Loan Seller shall fail to act, Credit Suisse First
Boston, acting through the Cayman Branch, not later than the earlier of 90 days
from the receipt by such Mortgage Loan Seller of such notice or discovery by
such Mortgage Loan Seller of such Defect, cure such Defect in all material
respects or repurchase the affected Loan at the applicable Purchase Price or in
conformity with the Mortgage Loan Purchase Agreement.
Any Defect or Breach which causes any Loan not to be a "qualified
mortgage" (within the meaning of Section 860G(a)(3) of the Code) shall be deemed
to materially and adversely affect the interest of Certificateholders therein.
If the affected Loan is to be repurchased, the Trustee shall designate a
Collection Account as the account into which funds in the amount of the Purchase
Price are to be deposited by wire transfer.
In connection with any repurchase of a Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the related Mortgage Loan Seller (in the event of a repurchase by a
Mortgage Loan Seller), FINOVA, FINOVA Capital or Llama (in the event of a
repurchase by FINOVA, FINOVA Capital or Llama), or the holder of the Crystal
Pavilion/Petry Building Other Note (in the event of a repurchase of the Crystal
Pavilion/Petry Building Trust Fund Note pursuant to the related Co-Lender
Agreement) upon delivery to each of the Trustee, the Servicer and the Special
Servicer of a trust receipt executed by such Mortgage Loan Seller, FINOVA,
FINOVA Capital or Llama, or the holder of the Crystal Pavilion/Petry Building
Other Note, as applicable, all portions of the Mortgage File and other documents
pertaining to such Loan possessed by it, and each document that constitutes a
part of the Mortgage File that was endorsed or assigned to the Trustee, shall be
endorsed or assigned, as the case may be, to such Mortgage Loan Seller, FINOVA,
FINOVA Capital or Llama, or the holder of the Crystal Pavilion/Petry Building
Other Note, as applicable, in the same manner as provided in Section 7 of the
related Mortgage Loan Purchase Agreement or Section 9.3 of the related FINOVA
Mortgage Loan Purchase Agreement or Section 5.1 of the Llama Mortgage Loan
Purchase Agreement, respectively.
Section 7 of the Mortgage Loan Purchase Agreements and Section 9.3
of the FINOVA Mortgage Loan Purchase Agreement and Section 5.1 of the Llama
Mortgage Loan Purchase Agreement provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Breach. Section 7 of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Defect.
If a Mortgage Loan Seller, FINOVA, FINOVA Capital or Llama defaults
on its obligations to repurchase any Loan as contemplated by Section 2.03(b),
the Trustee shall promptly notify the Certificateholders, the Rating Agencies,
the Servicer and the Special Servicer of such default. The Trustee shall enforce
the obligations of the Mortgage Loan Sellers under Section 7 of the related
Mortgage Loan Purchase Agreement, and of FINOVA, FINOVA Capital and Llama under
Section 9.3 of the related FINOVA Mortgage Loan Purchase Agreement and Section
5.1 of the Llama Mortgage Loan Purchase Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, shall be carried out in
such form, to such extent and at such time as if it were, in its individual
capacity, the owner of the affected Loan(s). The Trustee shall be reimbursed for
the reasonable costs of such enforcement: first, from a specific recovery of
costs, expenses or attorneys' fees against the defaulting Mortgage Loan Seller,
FINOVA, FINOVA Capital or Llama; second, pursuant to Section 3.05(a)(vii) out of
the related Purchase Price, to the extent that such expenses are a specific
component thereof; and third, if at the conclusion of such enforcement action it
is determined that the amounts described in clauses first and second are
insufficient, then pursuant to Section 3.05(a)(viii) out of general collections
on the Loans on deposit in the Collection Account.
Section 2.04 Execution of Certificates.
Subject to Sections 2.01 and 2.02, the Trustee hereby acknowledges
the assignment to it of the Loans and the delivery of the Mortgage Files and
fully executed original counterparts of the Mortgage Loan Purchase Agreements,
together with the assignment to it of all other assets included in the Trust
Fund. Concurrently with such assignment and delivery and in exchange therefor,
the Trustee acknowledges the issuance of the Uncertificated Lower-Tier Interests
to the Depositor and the Class LR, Class V-1 and Class V-2 Certificates to or
upon the order of the Depositor, in exchange for the Loans, receipt of which is
hereby acknowledged, and immediately thereafter, the Trustee acknowledges that,
pursuant to the written request of the Depositor executed by an officer of the
Depositor, it has executed and caused the Authenticating Agent to authenticate
and to deliver to or upon the order of the Depositor, in exchange for the
Uncertificated Lower-Tier Interests, the Regular Certificates and the Class R
Certificates, and the Depositor hereby acknowledges the receipt by it or its
designees, of all such Certificates.
<PAGE>
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Loans.
(a) Each Servicer and Special Servicer shall diligently service and
administer the Loans (and, with respect to the Special Servicer, any REO
Properties) it is obligated to service pursuant to this Agreement, subject to
the servicing of the L'Enfant Mortgage Loan by the L'Enfant Servicer and
L'Enfant Special Servicer and the 1211 Avenue of the Americas Mortgage Loan by
the 1211 Avenue of the Americas Servicer and the 1211 Avenue of the Americas
Special Servicer, on behalf of the Trust Fund and in the best interests of and
for the benefit of the Certificateholders (as determined by the Servicer or the
Special Servicer, as the case may be, in its good faith and reasonable judgment)
in accordance with applicable law, the terms of the respective Loans or
Specially Serviced Loans, and, to the extent consistent with the foregoing, the
terms of this Agreement (and, in the case of the L'Enfant Mortgage Loan and the
Crystal Pavilion/Petry Building Loan, the related Co-Lender Agreements, the
L'Enfant Intercreditor Agreement and the Crystal Pavilion/Petry Building
Intercreditor Agreement), and, to the extent consistent with the foregoing, in
accordance with the higher of the following standards of care: (1) the same
manner in which, and with the same care, skill, prudence and diligence with
which, such Servicer or Special Servicer, as the case may be, services and
administers similar commercial or multifamily mortgage loans for other
third-party portfolios, giving due consideration to the customary and usual
standards of practice of prudent institutional multifamily or commercial
mortgage lenders servicing their own mortgage loans and (2) the same care,
skill, prudence and diligence with which such Servicer or Special Servicer, as
the case may be, services and administers similar commercial or multifamily
mortgage loans owned by such Servicer or Special Servicer, in either case
exercising reasonable business judgment and with a view to the maximization, on
a present value basis (discounting at the related Mortgage Rate), of timely
recovery of principal and interest on the Loans or Specially Serviced Loans, as
applicable, but without regard to: (i) any relationship that such Servicer or
Special Servicer, as the case may be, or any Affiliate thereof may have with the
related Mortgagor or any other party to this Agreement; (ii) the ownership of
any Certificate by such Servicer or Special Servicer, as the case may be, or any
Affiliate thereof; (iii) such Servicer's obligation to make Advances; (iv) such
Servicer's or Special Servicer's, as the case may be, right to receive
compensation for its services hereunder or with respect to any particular
transaction; (v) such Servicer's or Special Servicer's ownership, servicing or
management of any other mortgage loans or mortgaged properties and (vi) the Pool
II Servicer's or Pool II Special Servicer's obligation to repurchase a Mortgage
Loan due to a breach of a representation or warranty (the foregoing,
collectively referred to as the "Servicing Standard"). Nothing herein contained
shall be construed as an express or implied guarantee by any Servicer or Special
Servicer of the collectibility of payments on the Loans or shall be construed as
impairing or adversely affecting any rights or benefits specifically provided by
this Agreement to each Servicer and Special Servicer, including with respect to
Servicing Fees or Special Servicing Fees or, with respect to each Servicer, the
right to be reimbursed for Advances.
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Loans as to which
a Servicing Transfer Event has occurred and is continuing (each such Pool I
Loan, a "Pool I Specially Serviced Loan", each such Pool II Loan, a "Pool II
Specially Serviced Loan" and collectively, the "Specially Serviced Loans"), and
(ii) any REO Properties. Notwithstanding the foregoing, each Servicer shall
continue to make all calculations, and prepare, and deliver to the Trustee, all
reports required to be prepared by the related Servicer hereunder with respect
to the Specially Serviced Loans as if no Servicing Transfer Event had occurred
and with respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such incidental services with respect to
such Specially Serviced Loan and REO Properties as are specifically provided for
herein; provided, however, that the Servicer shall not be liable for failure to
comply with such duties insofar as such failure results from a failure of the
Special Servicer to provide sufficient information to the Servicer to comply
with such duties or a failure of the Special Servicer to prepare and deliver to
the Servicer reports required hereunder to be delivered by the Special Servicer
to the Servicer. Each Loan that becomes a Specially Serviced Loan shall continue
as such until satisfaction of the conditions specified in Section 3.21(a).
Without limiting the foregoing, subject to Section 3.21, the Servicer shall be
obligated to service and administer all Loans which are not Specially Serviced
Loans; provided, however, that the Special Servicer shall make the inspections,
use its reasonable best efforts to collect the statements and shall prepare the
reports in respect of the related Mortgaged Properties with respect to Specially
Serviced Loans in accordance with Section 3.12; and provided, further, however,
that the Pool I Servicer shall provide the Pool I Special Servicer with notice
of any communication by the borrower with respect to the letter of credit
provided by the related borrower under the loans identified as Conroe Assisted
Living, Arlington Assisted Living and Temple Assisted Living on the Mortgage
Loan Schedule, and the Pool I Special Servicer shall have the exclusive right to
approve any draw down of funds under such letter of credit, and to approve any
modification, amendment, alteration or renewal of such letter of credit..
(b) Subject only to the Servicing Standard and the terms of this
Agreement and of the respective Loans, each Servicer and, with respect to the
Specially Serviced Loans, each Special Servicer each shall have full power and
authority, acting alone, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each Servicer and
Special Servicer, in its own name, is hereby authorized and empowered by the
Trustee and obligated to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Loan it
is obligated to service under this Agreement, any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
subject to Section 3.20, any and all modifications, waivers, amendments or
consents to or with respect to any documents contained in the related Mortgage
File; and any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments. Subject to
Section 3.10, the Trustee shall furnish, or cause to be furnished, to each
Servicer and Special Servicer any limited powers of attorney and other documents
necessary or appropriate to enable such Servicer or the Special Servicer, as the
case may be, to carry out its servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any negligence
with respect to, or misuse of, any such power of attorney by any Servicer or
Special Servicer.
(c) The relationship of each Servicer and Special Servicer to the
Trustee under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
Section 3.02 Collection of Loan Payments.
(a) Each Servicer and Special Servicer shall make reasonable efforts
to collect all payments called for under the terms and provisions of the Loans
it is obligated to service hereunder, and shall follow such collection
procedures as are consistent with this Agreement (including, without limitation,
the Servicing Standard). Consistent with the foregoing, each Servicer or Special
Servicer may in its discretion waive any Penalty Charge in connection with any
delinquent payment on a Loan it is obligated to service hereunder.
(b) All amounts collected on any Loan in the form of payments from
Mortgagors, Insurance and Condemnation Proceeds or Liquidation Proceeds shall be
applied to amounts due and owing under the related Note and Mortgage (including
any modifications to either of them) in accordance with the express provisions
of such Note and Mortgage (unless a payment default exists under such Loan and
the related Note and Mortgage permit application in the order and priority
determined by the lender) and, in the absence of such express provisions, shall
be applied (after payment to each Servicer, any Primary Servicer, each Special
Servicer, and/or the Trustee for any related Servicing Fees, Primary Servicing
Fees, Special Servicing Fees and Trustee Fees and the application to any P&I
Advances, Servicing Advances and interest on Advances from such Loan): first, as
a recovery of accrued and unpaid interest on such Loan at the related Mortgage
Rate (less portions thereof payable to each Servicer, Special Servicer, Trustee
or, if applicable, the related Primary Servicer) in effect from time to time to
but not including the Due Date in the Due Period of receipt; second, as a
recovery of principal of such Loan; and third, to the payment of Prepayment
Premiums and Yield Maintenance Charges. Notwithstanding the terms of any Loan,
no Servicer shall be entitled to the payment of any Penalty Charge in excess of
outstanding interest on Advances made with respect to such Loan, except to the
extent that (i) all reserves required to be established with the Servicer and
then required to be funded pursuant to the terms of such Loan have been so
funded, (ii) all payments of principal and interest then due on such Loan have
been paid and (iii) all related operating expenses, if applicable, have been
paid to the related Lock-Box or reserved for pursuant to the related Lock-Box
Agreement. In no event shall any collections on any ARD Loan be allocated to the
payment of Excess Interest until all principal and interest (other than Excess
Interest) due, or to become due, under such ARD Loan have been paid in full and
any Advances related to such ARD Loan (together with interest thereon) are
reimbursed. Amounts collected on any REO Loan shall be deemed to be applied in
accordance with the definition thereof.
(c) If any Servicer or Special Servicer receives, or receives notice
from the related Borrower that it will be receiving, Excess Interest in any Due
Period, such Servicer or Special Servicer, as applicable, shall promptly notify
the Trustee in writing.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) Each Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained with respect to the Loans it is required to service, and shall
administer such Servicing Accounts in accordance with the related Loan
Documents. Each Servicing Account shall be maintained in accordance with the
requirements of the related Loan and in accordance with the Servicing Standard
and to the extent not inconsistent with the terms of the Loans, in an Eligible
Account. Funds on deposit in the Servicing Accounts may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Withdrawals of
amounts so deposited from a Servicing Account may be made only to: (i) effect
payment of real estate taxes, assessments, Insurance Policy premiums, ground
rents (if applicable) and other items for which funds have been escrowed in the
Servicing Accounts; (ii) reimburse the Servicer of the related Loan or the
Trustee for any Servicing Advances and interest thereon; (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest to
Mortgagors on balances in the Servicing Account, if required by applicable law
or the terms of the related Loan and as described below or, if not so required,
to the Servicer of the related Loan; (v) withdraw amounts deposited in error;
(vi) clear and terminate the Servicing Accounts at the termination of this
Agreement in accordance with Section 9.01; and (vii) pay the Servicer of the
related Loan, as additional servicing compensation in accordance with Section
3.11(a), interest and investment income earned in respect of amounts relating to
the Trust Fund held in the Servicing Accounts as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with respect to the
Servicing Accounts maintained by such Servicer for any period from any
Distribution Date to the immediately succeeding P&I Advance Date) to the extent
not required by law or the terms of the related Loan to be paid to the
Mortgagors.
(b) Each Special Servicer, in the case of REO Loans and Specially
Serviced Loans, and Servicer, in the case of all other Loans that it is required
to service, shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of real estate taxes, assessments and
other similar items that are or may become a lien thereon (including related
penalty or interest charges) and the status of Insurance Policy premiums and any
ground rents payable in respect thereof. Each Special Servicer, in the case of
REO Loans and Specially Serviced Loans, and Servicer, in the case of all other
Loans that it is required to service, shall obtain all bills for the payment of
such items (including renewal premiums) and shall effect payment thereof from
the REO Account or the Servicing Accounts, and, if such amounts are insufficient
to pay such items in full, such Servicer shall make a Servicing Advance prior to
the applicable penalty or termination date, as allowed under the terms of the
related Loan and, in any event, consistent with the Servicing Standard.
Notwithstanding anything to the contrary in the preceding sentence, with respect
to Loans that do not provide for escrows for the payment of taxes and
assessments, the Servicer that is required to service such Loans shall make a
Servicing Advance for the payment of such items upon the earlier of (x) 30 days
after the date such payments first become delinquent and (y) five Business Days
before the scheduled date of foreclosure of any lien arising from nonpayment of
such items (which Servicing Advance shall in each case be so applied by such
Servicer at the written direction of the Special Servicer in the case of
Specially Serviced Loans and REO Loans). In no event shall any Servicer or
Special Servicer be required to make any such Servicing Advance that would, if
made, be a Nonrecoverable Servicing Advance. To the extent that a Loan does not
require a Mortgagor to escrow for the payment of real estate taxes, assessments,
Insurance Policy premiums, ground rents (if applicable) and similar items, the
Special Servicer, in the case of Specially Serviced Loans and REO Loans, and the
Servicer, in the case of all other Loans that it is required to service, shall
use reasonable efforts consistent with the Servicing Standard to require that
payments in respect of such items be made by the Mortgagor at the time they
first become due.
(c) In accordance with the Servicing Standard and for all Loans that
it is required to service, the Servicer shall make a Servicing Advance with
respect to each related Mortgaged Property (including any REO Property) of all
such funds as are necessary for the purpose of effecting the payment of (i)
ground rents (if applicable), (ii) premiums on Insurance Policies, (iii)
operating, leasing, managing and liquidation expenses for REO Properties and
(iv) environmental inspections if and to the extent monies in the Servicing
Accounts are insufficient to pay such item when due and the related Mortgagor
has failed to pay such item on a timely basis, provided that no Servicer shall
be required to make any such advance that would, if made, constitute a
Nonrecoverable Servicing Advance; and provided further that with respect to the
payment of taxes and assessments, no Servicer shall be required to make any such
advance until the earlier of (i) five Business Days after such Servicer has
received confirmation that such item has not been paid and (ii) with respect to
Loans that provide for escrows for the payment of taxes and assessments, the
earlier of (A) 30 days after the date such payments first become due and (B)
five Business Days before the scheduled date of foreclosure of any lien arising
from nonpayment of such items.
Each Special Servicer shall give the related Servicer and the
Trustee not less than five Business Days' notice before the date on which such
Servicer is required to make any Servicing Advance with respect to a given Loan
that it is required to service or related REO Property; provided, however, that
only two Business Days' notice shall be required in respect of Servicing
Advances required to be made on an urgent or emergency basis (which may include,
without limitation, Servicing Advances required to make tax or insurance
payments). In addition, each Special Servicer shall provide each Servicer and
the Trustee with such information in its possession as each Servicer or the
Trustee, as applicable, may reasonably request to enable such Servicer or the
Trustee, as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance. Any request by a Special Servicer
that a Servicer make a Servicing Advance shall be deemed to be a determination
by the Special Servicer that such requested Servicing Advance is not a
Nonrecoverable Servicing Advance, and each Servicer shall be entitled to
conclusively rely on such determination, provided that such determination shall
not be binding upon either Servicer. On the fourth Business Day before each
Distribution Date, each Special Servicer shall report to each Servicer such
Special Servicer's determination as to whether any Servicing Advance previously
made with respect to a Specially Serviced Loan or REO Loan is a Nonrecoverable
Servicing Advance. Each Servicer shall be entitled to conclusively rely on such
a determination, provided that such determination shall not be binding upon
either Servicer.
All such Servicing Advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by any Servicer or Special Servicer in effecting
the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of the Mortgaged Properties shall, for purposes hereof,
including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Loans, notwithstanding that the terms of such Loans so permit. If a Servicer
fails to make any required Servicing Advance as and when due to the extent a
Responsible Officer of the Trustee has been notified of such failure in writing
by such Servicer, a Special Servicer or Depositor, the Trustee shall make such
Servicing Advance pursuant to Section 7.05.
(d) In connection with its recovery of any Servicing Advance out of
a Collection Account pursuant to clauses (iv) or (v) of Section 3.05(a) or from
a Servicing Account pursuant to Section 3.03(a)(ii), the related Servicer and
the Trustee, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in such Collection Account, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
Servicing Advance from and including the date made to, but not including, the
date of reimbursement. Each Servicer shall reimburse itself or the Trustee, as
the case may be, for any outstanding Servicing Advance made by such Servicer or
the Trustee as soon as practically possible after funds available for such
purpose are deposited in the related Collection Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Loan, the Servicer of
such Loan or, with respect to Specially Serviced Loans, the related Special
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Loan, the Servicer of such Loan or, with
respect to Specially Serviced Loans, the related Special Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor fails to promptly respond to any inquiry
described in this Section 3.03(e), the Servicer of the related Loan (with
respect to Loans that are not Specially Serviced Loans) shall determine whether
the related Mortgagor has failed to perform its obligations under the related
Loan and report any such failure to the related Special Servicer within a
reasonable time after the date as of which such operations and maintenance plan
is required to be established or executed or the date as of which such actions
or remediations are required to be or to have been taken or completed.
Section 3.04 The Collection Account, Distribution Accounts and
Excess Interest Distribution Account.
(a) Each Servicer shall establish and maintain, or cause to be
established and maintained, for the Loans that it is required to service, a
Collection Account, into which such Servicer shall deposit or cause to be
deposited on a daily basis (and in no event later than the Business Day
following receipt of available funds), except as otherwise specifically provided
herein, the following payments and collections received after the Cut-off Date
(other than payments of principal and interest on the Loans due and payable on
or before the Cut-off Date) and payments (other than Principal Prepayments)
received by it on or prior to the Cut-off Date but allocable to a period
subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on such Loans; and
(ii) all payments on account of interest on such Loans, net of
(A) the Servicing Fees and Primary Servicing Fees (in each case net of any
amount utilized to offset Prepayment Interest Shortfalls), (B) Penalty
Charges (net of any amount thereof utilized to offset interest on
Advances), (C) Prepayment Premiums, (D) Excess Interest and (E) Yield
Maintenance Charges; and
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any such Loan or related REO Property
(other than Liquidation Proceeds that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01); and
(iv) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(v)any amounts required to be deposited by such Servicer pursuant
to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Collection Account; and
(vi) any amounts required to be deposited by such Servicer or a
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy; and
(vii) any amounts required to be deposited by such Servicer
pursuant to the last paragraph of Section 3.11(a) as a reduction in the
compensation to such Servicer to cover Prepayment Interest Shortfalls; and
(viii) any Prepayment Interest Excess to which such Servicer is
not entitled as provided in Section 3.11(a).
The foregoing requirements for deposit by a Servicer in a Collection
Account shall be exclusive, it being understood and agreed that actual payments
from Mortgagors in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees,
amounts collected for mortgagor checks returned for insufficient funds or other
amounts that such Servicer or a Special Servicer is entitled to retain as
additional servicing compensation pursuant to Section 3.11 need not be deposited
by such Servicer in the Collection Account. If a Servicer shall deposit in a
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from such Collection Account.
Within one Business Day of receipt of any of the foregoing amounts
with respect to any Specially Serviced Loan, the Special Servicer shall remit
such amounts to the Servicer required to service the related Loan for deposit
into the related Collection Account in accordance with the second preceding
paragraph. Any amounts received by the Special Servicer with respect to an REO
Property shall be deposited into the REO Account and remitted to the Servicer
required to service the related Loan for deposit into the related Collection
Account pursuant to Section 3.16(c).
(b) The Trustee shall establish and maintain the Distribution
Accounts in trust for the benefit of the Certificateholders. The Trustee shall
make or be deemed to have made deposits in and withdrawals from the Distribution
Accounts in accordance with the terms of this Agreement. Each Servicer shall
deliver to the Trustee each month on or before 2:00 p.m., New York City time, on
the Servicer Remittance Date, for deposit in the Lower-Tier Distribution
Account, that portion of the Available Distribution Amount (calculated without
regard to clauses (a)(v) and (c) of the definition thereof) for the related
Distribution Date then on deposit in the Collection Account maintained by such
Servicer.
Each Servicer shall, as and when required hereunder, deliver to the
Trustee for deposit in the Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by such Servicer in
accordance with Section 4.03 (or, if the Trustee succeeds to such
Servicer's obligations hereunder, Section 7.05);
(ii) any Liquidation Proceeds paid by such Servicer in connection
with the purchase of all of the Loans and any REO Properties in the Trust
Fund pursuant to Section 9.01 (exclusive of that portion thereof required
to be deposited in the Collection Account pursuant to Section 9.01);
(iii) any Yield Maintenance Charges or Prepayment Premiums
(except to the extent that such Yield Maintenance Charges or Prepayment
Premiums have been delivered to the Trustee pursuant to the final sentence
of the first paragraph of this Section 3.04(b) by virtue of the operation
of the parenthetical contained therein); and
(iv) any other amounts required to be so delivered for deposit in
the Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Trustee that are
required by the terms of this Agreement to be deposited therein.
On each Distribution Date, the Trustee shall deposit or be deemed to
have deposited in the Upper-Tier Distribution Account an aggregate amount of
immediately available funds equal to the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and Yield Maintenance Charges for such
Distribution Date allocated in payment of the Uncertificated Lower-Tier
Interests as specified in Sections 4.01(b) and 4.01(e), respectively.
(c) Prior to the Servicer Remittance Date relating to any Due Period
in which Excess Interest is received, the Trustee shall establish and maintain
the Excess Interest Distribution Account in the name of the Trustee for the
benefit of the Holders of the Class V-1 and Class V-2 Certificates. The Excess
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before each Servicer Remittance Date, each Servicer shall remit
to the Trustee for deposit in the Excess Interest Distribution Account an amount
equal to the Excess Interest received during the related Due Period. On each
Distribution Date, the Trustee shall withdraw the Excess Interest from the
Excess Interest Distribution Account for distribution pursuant to Section
4.01(f). Following the distribution of Excess Interest to Holders of the Class
V-1 and Class V-2 Certificates on the first Distribution Date after which no
Loans remain outstanding that pursuant to their terms could pay Excess Interest,
the Trustee shall terminate the Excess Interest Distribution Account.
(d) [Reserved].
(e) Funds on deposit in a Collection Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. Funds
on deposit in the Upper-Tier Distribution Account and the Lower-Tier
Distribution Account shall not be invested. Each Servicer shall give notice to
the Trustee, the Special Servicer, the Rating Agencies and the Depositor of any
new location of the Collection Account prior to any change thereof. As of the
Closing Date (or the date such account is established, if later), the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account and the Excess
Interest Distribution Account shall be located at the offices of the Trustee.
The Trustee shall give notice to each Servicer and the Depositor of any new
location of the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account or the Excess Interest Distribution Account, prior to any change
thereof.
Section 3.05 Permitted Withdrawals from the Collection Account and
the Distribution Accounts.
(a) Each Servicer may, from time to time, make withdrawals from the
Collection Account maintained by it for any of the following purposes:
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account the amount required to be remitted pursuant to the
first paragraph of Section 3.04(b) and the amount to be applied to make
P&I Advances by such Servicer pursuant to Section 4.03(a);
(ii) to pay (x) to itself, unpaid Servicing Fees (net of any such
amounts required to offset Prepayment Interest Shortfalls pursuant to
Section 3.11(a)) and any Primary Servicing Fees to which it is entitled
pursuant to Section 3.11(a), (y) to any Primary Servicer entitled thereto,
the related Primary Servicing Fee, and (z) to the Special Servicer, unpaid
Special Servicing Fees, Liquidation Fees and Workout Fees in respect of
each Loan that such Servicer is required to service, related Specially
Serviced Loan and related REO Loan, as applicable, the Servicer's rights,
any Primary Servicer's rights and the Special Servicer's rights to payment
pursuant to this clause (ii) with respect to any Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Loan (whether in the form of payments, Liquidation Proceeds or Insurance
and Condemnation Proceeds) or such REO Loan (whether in the form of REO
Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds)
that are allocable as a recovery of interest thereon;
(iii) to reimburse itself or the Trustee, as applicable, for
unreimbursed P&I Advances, the Servicer's or the Trustee's right to
receive payment pursuant to this clause (iii) being limited to amounts
received which represent Late Collections of interest (net of the related
Servicing Fees) on and principal of the particular Loans and REO Loans
with respect to which such P&I Advances were made;
(iv) to reimburse itself or the Trustee, as applicable, for
unreimbursed Servicing Advances, the Servicer's or the Trustee's
respective rights to receive payment pursuant to this clause (iv) with
respect to any Loan or REO Property being limited to, as applicable,
related payments, Liquidation Proceeds, Insurance and Condemnation
Proceeds and REO Revenues;
(v) to reimburse itself or the Trustee, as applicable, for
Nonrecoverable Advances out of general collections on the Loans and REO
Properties;
(vi) at such time as it reimburses itself or the Trustee, as
applicable, for (a) any unreimbursed P&I Advance pursuant to clause (iii)
above, to pay itself or the Trustee, as applicable, any interest accrued
and payable thereon in accordance with Section 4.03(d), (b) any
unreimbursed Servicing Advances pursuant to clause (iv) above or pursuant
to Section 3.03(a)(ii), to pay itself or the Trustee, as the case may be,
any interest accrued and payable thereon in accordance with Section
3.03(d) or (c) any Nonrecoverable Advances pursuant to clause (v) above,
to pay itself or the Trustee, as the case may be, any interest accrued and
payable thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect relating to a
Loan required to be serviced by such Servicer and giving rise to a
repurchase obligation of any Mortgage Loan Seller under Section 7 of the
related Mortgage Loan Purchase Agreement or FINOVA, FINOVA Capital or
Llama under Section 9.3 of the related FINOVA Mortgage Loan Purchase
Agreement or under Section 5.1 of the Llama Mortgage Loan Purchase
Agreement, including, without limitation, any expenses arising out of the
enforcement of the repurchase obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Loan being
limited to that portion of the Purchase Price paid for such Loan that
represents such expense in accordance with clause (iv) of the definition
of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself,
the Trustee or the Special Servicer, as the case may be, out of general
collections on the Loans and REO Properties for any unreimbursed expense
reasonably incurred by such Person relating to a Loan required to be
serviced by such Servicer in connection with the enforcement of any
Mortgage Loan Seller's, FINOVA's, FINOVA Capital's or Llama's obligations
under Section 7 of the related Mortgage Loan Purchase Agreement or Section
9.3 of the related FINOVA Mortgage Loan Purchase Agreement or Section 5.1
of the Llama Mortgage Loan Purchase Agreement, as applicable, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise;
(ix) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) interest and investment income earned
in respect of amounts relating to the Trust Fund held in the Collection
Account maintained by such Servicer as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to the
Collection Account for any period from any Distribution Date to the
immediately succeeding P&I Advance Date) (net of any such amounts required
to offset Prepayment Interest Shortfalls pursuant to Section 3.11(a)) and
any Primary Servicing Fees to which it is entitled pursuant to Section
3.11(a), (b) Penalty Charges on any Loan required to be serviced by such
Servicer other than a Specially Serviced Loan, but only to the extent (x)
collected from the related Mortgagor and (y) in excess of outstanding
interest on Advances made with respect to such Loan, and to the extent
that all amounts then due and payable with respect to such Loan have been
paid, (c) all Prepayment Interest Excess in connection with the receipt of
Principal Prepayments (except to the extent otherwise provided in Section
3.11(a)) or Insurance and Condemnation Proceeds and (d) other fees
identified in the third paragraph of Section 3.11(a); and to pay the
Special Servicer, as additional servicing compensation in accordance with
the last paragraph of Section 3.11(b), Penalty Charges on any Specially
Serviced Loan (but only to the extent collected from the related Mortgagor
and after all Advances on the Loan, and interest thereon, have been paid
and to the extent that all amounts then due and payable with respect to
such Specially Serviced Loan have been paid);
(x) to recoup any amounts deposited in the Collection Account
maintained by such Servicer in error;
(xi) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Sections
6.03(a) or 6.03(b);
(xii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Section 3.31 to the extent payable out of the Trust Fund,
(b) the cost of any Opinion of Counsel contemplated by Sections 10.01(a)
or 10.01(c) in connection with an amendment to this Agreement requested by
the Trustee or the Servicer, which amendment is in furtherance of the
rights and interests of Certificateholders and (c) the cost of obtaining
the REO Extension contemplated by Section 3.16(a) (the amounts
contemplated by this clause may be paid from either Collection Account);
(xiii) to pay out of general collections on the Loans and REO
Properties any and all federal, state and local taxes imposed on either
REMIC created hereunder or either of their assets or transactions,
together with all incidental costs and expenses, to the extent that none
of the Servicer, the Special Servicer or the Trustee is liable therefor
(the amounts contemplated by this clause may be paid from either
Collection Account);
(xiv) to reimburse the Servicer and the Special Servicer out of
general collections on the Loans and REO Properties for expenses incurred
by and reimbursable to them by the Trust Fund;
(xv) to pay itself, the Special Servicer, a Mortgage Loan Seller,
FINOVA, FINOVA Capital or Llama, as the case may be, with respect to each
Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of
purchase;
(xvi) to reimburse the Special Servicer for the cost of any
environmental testing performed at the Special Servicer's direction
pursuant to the last sentence of Section 3.09(c);
(xvii) to transfer amounts required to be transferred to the
Interest Reserve Account; and
(xviii) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
Each Servicer shall keep and maintain separate accounting records,
on a loan-by-loan and property-by-property basis when appropriate, for the
purpose of justifying any withdrawal from the Collection Account.
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make distributions of the Lower-Tier Distribution Amount
pursuant to Section 4.01(b) and the amount of any Prepayment Premium and
Yield Maintenance Charges distributable pursuant to Section 4.01(c) in the
Upper-Tier Distribution Account;
(ii) to pay the Trustee accrued but unpaid Trustee Fees;
(iii) to pay to the Trustee or any of their Affiliates,
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person hereunder, including pursuant
to Section 3.31(o), 6.03(a), 6.03(b), 8.05(c), 8.05(d) or 8.05(e);
(iv) to pay for the cost of the Opinion of Counsel contemplated
by Section 10.01(c) in connection with any amendment to this Agreement
requested by the Trustee;
(v) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01; and
(vi) to recoup any amounts deposited in the Lower-Tier
Distribution Account in error.
(c) The Trustee may make withdrawals from the Upper-Tier
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than
Holders of the Class LR Certificates) on each Distribution Date pursuant
to Section 4.01 or 9.01, as applicable;
(ii) to clear and terminate the Upper-Tier Distribution Account
at the termination of this Agreement pursuant to Section 9.01; and
(iii) to recoup any amounts deposited in the Upper-Tier
Distribution Account in error.
(d) Notwithstanding anything herein to the contrary, with respect to
any Loan, (i) if amounts on deposit in the related Collection Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii), then the Trustee Fee shall be paid in full prior to the
payment of any Servicing Fees payable under Section 3.05(a)(ii) and (ii) if
amounts on deposit in the related Collection Account are not sufficient to
reimburse the full amount of Advances listed in Sections 3.05(a)(iii), (iv), (v)
and (vi), then reimbursements shall be paid first to the Trustee and then to the
Servicer.
Section 3.06 Investment of Funds in the Collection Account,
Servicing Accounts, Cash Collateral Accounts, Lock-Box Accounts, the Interest
Reserve Account and the REO Account.
(a) Each Servicer may direct any depository institution maintaining
for such Servicer a Collection Account, any Servicing Account, any Cash
Collateral Account, any Lock-Box Account and the Interest Reserve Account, and
the Special Servicer may direct any depository institution maintaining the REO
Account (any of the foregoing accounts, for purposes of this Section 3.06, an
"Investment Account"), to invest (or if such depository institution is a
Servicer or Special Servicer, as applicable, it may itself invest) the funds
held therein solely in one or more Permitted Investments bearing interest or
sold at a discount, and maturing, unless payable on demand, (i) no later than
the Business Day immediately preceding the next succeeding date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the depository institution maintaining such account is
the obligor thereon and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
depository institution maintaining such account is the obligor thereon. All such
Permitted Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such). Funds on deposit in the Excess Interest
Distribution Account and Distribution Accounts shall remain uninvested.
Each Servicer (in the case of any Investment Account maintained by
such Servicer other than the REO Account) or the Special Servicer (in the case
of the REO Account), on behalf of the Trustee, shall maintain continuous
possession of any Permitted Investment of amounts in such accounts that is
either (i) a "certificated security," as such term is defined in the UCC or (ii)
other property in which a secured party may perfect its security interest by
possession under the UCC or any other applicable law. Possession of any such
Permitted Investment by a Servicer or Special Servicer shall constitute
possession by the Trustee, as secured party, for purposes of Section 9-305 of
the UCC and any other applicable law. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Servicer (in the case of any Investment Account maintained by such
Servicer other than the REO Account) or the Special Servicer (in the case of the
REO Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by such Servicer or Special Servicer, as the case may be,
that such Permitted Investment would not constitute a Permitted Investment
in respect of funds thereafter on deposit in the Investment Account.
(b) Interest and investment income realized on funds with respect to
Loans required to be serviced by a Servicer and deposited in each of the
Collection Account, the Interest Reserve Account, any Cash Collateral Account,
any Lock-Box Account and any Servicing Account, to the extent of the Net
Investment Earnings, if any, with respect to such account for each period from
any Distribution Date to the immediately succeeding P&I Advance Date shall be
for the sole and exclusive benefit of such Servicer to the extent not required
to be paid to the related Borrower and shall be subject to its withdrawal, or
withdrawal at its direction, in accordance with Section 3.03(a), 3.05(a),
3.05(b) or 3.05(c), as the case may be. Interest and investment income realized
on funds deposited in the REO Account, to the extent of the Net Investment
Earnings, if any, with respect to such account for each period from any
Distribution Date to the immediately succeeding P&I Advance Date, shall be for
the sole and exclusive benefit of the Trust Fund, but shall be subject to
withdrawal in accordance with Section 3.16(c). If any loss shall be incurred in
respect of any Permitted Investment directed to be made by a Servicer and on
deposit in any of the Collection Account, any Cash Collateral Account, any
Lock-Box Account, any Servicing Account or the REO Account, such Servicer (in
the case of the Collection Account, any Cash Collateral Account, any Lock-Box
Account and any Servicing Account) or the Special Servicer (in the case of the
REO Account) shall deposit therein, no later than the P&I Advance Date, without
right of reimbursement, the amount of the Net Investment Loss, if any, with
respect to such account for the period from the immediately preceding
Distribution Date to such P&I Advance Date.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated to
any Class shall, take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
Notwithstanding the investment of funds held in a Collection Account
pursuant to this Section 3.06, for purposes of calculating the Available
Distribution Amount, the amounts so invested shall be deemed to remain on
deposit in such account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) Each Servicer, as to Loans required to be serviced by it and
that are not Pool II Specially Serviced Loans, the Pool I Servicer with respect
to Pool I Specially Serviced Loans, and the Pool II Special Servicer, as to Pool
II Specially Serviced Loans, shall use its reasonable best efforts to cause the
Mortgagor to maintain, to the extent required by the terms of the related Note
and Mortgage, or if the Mortgagor does not so maintain, shall itself maintain,
for each Loan any Insurance Policy coverage as is required under the related
Mortgage (to the extent that the Trustee has an insurable interest and such
Insurance Policy coverage is available at commercially reasonable rates, as
determined by such Servicer or Special Servicer, as applicable, in accordance
with the Servicing Standard); provided, however, that, subject to Section
3.07(f), if any Mortgage permits the holder thereof to dictate to the Mortgagor
the Insurance Policy coverage to be maintained on such Mortgaged Property, such
Servicer or Special Servicer, as applicable, shall impose such insurance
requirements as are consistent with the Servicing Standard. Subject to Section
3.17(a), the Special Servicer shall maintain for each REO Property no less
Insurance Policy coverage than was previously required of the Mortgagor under
the related Loan or, at Special Servicer's election, coverage satisfying
insurance requirements consistent with the Servicing Standard.
All such Insurance Policies shall (i) contain a "standard" mortgagee
clause, with loss payable to the Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of Loans other than REO Properties) or the
Special Servicer on behalf of the Trustee (in the case of insurance maintained
in respect of REO Properties), (ii) include coverage in an amount not less than
the lesser of the full replacement cost of the improvements which are a part of
the Mortgaged Property or the outstanding principal balance owing on the related
Loan, but in any case in such an amount so as to avoid the application of any
co-insurance clause, (iii) include a replacement cost endorsement providing no
deduction for depreciation (unless such endorsement is not permitted under the
related Loan Documents) and (iv) be issued by either (x) a Qualified Insurer or
(y) for any Insurance Policy being maintained by the related Mortgagor, an
insurance carrier meeting the requirements of the related Mortgage, provided
that such Qualified Insurer or other insurance carrier is authorized under
applicable law to issue such Insurance Policies. Any amounts collected by a
Servicer or Special Servicer under any such Insurance Policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with the Servicing Standard and the provisions of the
related Loan) shall be deposited in the Collection Account maintained by such
Servicer, subject to withdrawal pursuant to Section 3.05(a).
Any costs incurred by a Servicer in maintaining any such Insurance
Policies in respect of Loans (other than with respect to REO Properties) if the
Mortgagor defaults on its obligation to maintain such Insurance Policies shall
be advanced by such Servicer as a Servicing Advance. The amounts so advanced
shall not, for purposes of calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Loan, notwithstanding that the terms of such Loan so permit. Any cost incurred
by the Special Servicer in maintaining any such Insurance Policies with respect
to REO Properties shall be an expense of the Trust Fund payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, advanced by the Servicer required to service
the related Loan as a Servicing Advance.
(b) (i) If a Servicer or Special Servicer obtains and maintains a
blanket Insurance Policy with a Qualified Insurer insuring against fire and
hazard losses on all of the Loans or REO Properties, as the case may be,
required to be serviced and administered by it hereunder, and such Insurance
Policy provides protection equivalent to the individual policies otherwise
required, then such Servicer or Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such blanket Insurance Policy may contain a deductible clause, in
which case if there shall not have been maintained on the related Mortgaged
Property or REO Property a fire and hazard Insurance Policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such Insurance Policy, the Servicer or the
Special Servicer shall promptly deposit into the Collection Account maintained
by it from its own funds the portion of such loss or losses that would have been
covered under the individual policy (giving effect to any deductible limitation
or, in the absence of such deductible limitation, the deductible limitation that
is consistent with the Servicing Standard) but is not covered under the blanket
Insurance Policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Loans required to be serviced by
it, each Servicer agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket Insurance Policy
in a timely fashion in accordance with the terms of such policy. The Special
Servicer, to the extent consistent with the Servicing Standard, may maintain
earthquake insurance on REO Properties, provided coverage is available at
commercially reasonable rates.
(ii) If a Servicer or Special Servicer causes any Mortgaged
Property to be covered by a master single interest Insurance Policy with a
Qualified Insurer naming such Servicer or Special Servicer as the loss payee,
then to the extent such Insurance Policy provides protection equivalent to the
individual policies otherwise required, such Servicer or Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause such insurance
to be maintained on the related Mortgage Properties. If a Servicer or Special
Servicer causes any Mortgaged Property to be covered by such master single
interest Insurance Policy, the incremental costs of such insurance applicable to
such Mortgaged Property (i.e., other than any minimum or standby premium payable
for such policy whether or not any Mortgaged Property is covered thereby) shall
be paid by such Servicer as a Servicing Advance. Such master single interest
Insurance Policy may contain a deductible clause, in which case the Servicer or
the Special Servicer shall, if (A) there shall not have been maintained on the
related Mortgaged Property or REO Property a policy otherwise complying with the
provisions of Section 3.07(a) and (B) there shall have been one or more losses
which would have been covered by such policy had it been maintained, deposit
into the Collection Account maintained by such Servicer from its own funds the
amount not otherwise payable under the master single interest Insurance Policy
because of such deductible clause, to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Loan, or, in the
absence of any such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard.
(c) Each Servicer and Special Servicer shall maintain with
responsible companies, at their own expense, a blanket fidelity bond (a
"Fidelity Bond") and an errors and omissions insurance policy with a Qualified
Insurer, with broad coverage on all officers, employees or other personnel
acting in any capacity requiring such persons to handle funds, money, documents
or paper relating to the Loans required to be serviced by such Servicer or
Special Servicer ("Servicer Employees," in the case of a Servicer, and "Special
Servicer Employees," in the case of a Special Servicer). Any such Fidelity Bond
and errors and omissions insurance shall protect and insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions,
failure to maintain any insurance policies required pursuant to the Agreement
and negligent acts of such Servicer Employees or Special Servicer Employees.
Such errors and omissions policy shall also protect and insure the Servicer
against losses in connection with the release or satisfaction of a Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section requiring such Fidelity Bond and errors and omissions
insurance shall diminish or relieve the Servicer or Special Servicer from its
duties and obligations as set forth in this Agreement.
The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to the greater of (i) the
amount necessary for the Servicer or Special Servicer, as applicable, to qualify
as a FNMA or FHLMC servicer or in an amount that would meet the requirements of
prudent institutional commercial mortgage loan servicers for similar
transactions, and (ii) $1,000,000. The Servicer or the Special Servicer, as
applicable, shall cause the Trustee, on behalf of the Trust, to be named as a
loss payee on each such Fidelity Bond and errors and omissions policy.
Notwithstanding the foregoing, so long as the long-term debt or the deposit
obligations or claims-paying ability of a Servicer or Special Servicer (or its
immediate or remote parent) is rated at least "A" by S&P and "A" by Fitch (or,
if not rated by Fitch, upon written confirmation by Fitch that self-insurance by
the Servicer or the Special Servicer, as applicable, with respect to a Fidelity
Bond would not by reason thereof cause Fitch to qualify, downgrade or withdraw
the then-current rating assigned to any of the Certificates that are currently
being rated by Fitch), such Servicer or Special Servicer, respectively, shall be
allowed to provide self-insurance with respect to a Fidelity Bond and such
errors and omissions policy. Coverage of the Servicer or the Special Servicer
under a policy or bond obtained by an Affiliate of the Servicer or the Special
Servicer and providing the coverage required by this Section 3.07(c) shall
satisfy the requirements of this Section 3.07(c).
The Special Servicer and the Servicer will promptly report in
writing to the Trustee any material changes that may occur in their respective
Fidelity Bonds, if any, and/or their respective errors and omissions Insurance
Policies, as the case may be, and will furnish to the Trustee copies of all
binders and policies or certificates evidencing that such bonds, if any, and
insurance policies are in full force and effect.
(d) If, as of the Closing Date, a Mortgaged Property (other than an
REO Property) shall be in a federally designated special flood hazard area (if
flood insurance has been made available), or if the Servicer becomes aware, in
performing its duties under this Agreement, that a Mortgaged Property becomes
located in such area by virtue of remapping conducted by the Federal Emergency
Management Agency, the Servicer or Special Servicer required to service the
related Loan will use its reasonable best efforts to cause the related Mortgagor
(in accordance with applicable law and the terms of the Loan Documents) to
maintain, and, if the related Mortgagor shall default in its obligation to so
maintain, shall itself maintain (except that the Pool I Servicer shall maintain
such policies for Pool I Specially Serviced Loans), to the extent available at
commercially reasonable rates (as determined by such Servicer or Special
Servicer in accordance with the Servicing Standard), flood insurance in respect
thereof, but only to the extent the related Loan permits the mortgagee to
require such coverage and the maintenance of such coverage is consistent with
the Servicing Standard. Such flood insurance shall be in an amount equal to the
least of (i) the unpaid principal balance of the related Loan, (ii) the maximum
amount of insurance which is available under the Flood Disaster Protection Act
of 1973, as amended, and (iii) the amount required by the Loan. If the cost of
any insurance described above is not borne by the Mortgagor, the Servicer shall
promptly make a Servicing Advance for such costs, subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standard), a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount equal to the least of (i) the
unpaid principal balance of the related Loan, (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973, as
amended, and (iii) the amount required by the Loan. The cost of any such flood
insurance with respect to an REO Property shall be an expense of the Trust Fund
payable out of the related REO Account pursuant to Section 3.16(c) or, if the
amount on deposit therein is insufficient therefor, paid by the Servicer as a
Servicing Advance.
(f) Notwithstanding the provisions of the related Mortgage and any
other provision of this Agreement, but otherwise in accordance with the
Servicing Standard, the Servicer required to service the related Loan shall not
require any Mortgagor to obtain insurance in excess of the amounts of coverage
and deductibles heretofore required by the applicable Mortgage Loan Seller in
connection with the origination of the related Loan (such amounts, with respect
to each Loan, the "Origination Required Insurance Amounts"), unless such
Servicer determines, in accordance with the Servicing Standard, that such
Origination Required Insurance Amounts would not be prudent for property of the
same type as the related Mortgaged Property. Each Servicer shall require that
each policy of business income insurance maintained by a Mortgagor have a
minimum term of at least twelve months. The Depositor shall provide evidence to
the Servicer required to service the related Loan of the Origination Required
Insurance Amounts for each Mortgaged Property.
Section 3.08 Enforcement of Due-On-Sale and Due-On-Encumbrance
Clauses; Assumption Agreements; Defeasance Provisions.
(a) (i) As to each Loan which contains a provision in the nature of
a "due-on-sale" clause, which by its terms:
(A) provides that such Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property or the related Borrower
or
(B) provides that such Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
the Servicer for such Loan shall provide notice to the Special Servicer for such
Loan of any request for a waiver thereof, and the Special Servicer (whether or
not such Loan is a Specially Serviced Loan) shall enforce such due-on-sale
clause, unless the Special Servicer determines, in accordance with the Servicing
Standard, that (1) not declaring an Event of Default (as defined in the related
Mortgage) or (2) granting such consent would be likely to result in a greater
recovery (or an equal recovery, provided the other conditions for an assumption
or waiver of a due-on-sale clause are met), on a present value basis
(discounting at the related Mortgage Rate), than would enforcement of such
clause or the failure to grant such consent. If the Special Servicer determines
that (1) not declaring an Event of Default (as defined in the related Mortgage)
or (2) granting such consent would be likely to result in a greater recovery (or
an equal recovery, provided the other conditions for an assumption or waiver of
a due-on-sale clause are met), the Special Servicer shall take or enter into an
assumption agreement from or with the proposed transferee as obligor thereon,
provided that (x) the credit status of the prospective transferee is in
compliance with the Special Servicer's regular commercial mortgage loan
origination criteria or the Servicing Standard and the terms of the related
Mortgage and (y) with respect to any Loan which is a Significant Loan, the
Special Servicer shall have received written confirmation from each of the
Rating Agencies that such assumption would not, in of itself, cause a downgrade,
qualification or withdrawal of any of the then-current ratings assigned to the
Certificates.
(ii) Notwithstanding the provisions of any Loan, foreclosure by a
Mezzanine Loan Holder on any Mezzanine Loan Collateral securing a
Mezzanine Loan to an affiliate of the related Borrower shall not, for
purposes of this Agreement, be deemed to be a violation of the due-on-sale
clause of the related Loan Documents or of clause (i) of this Section
3.08(a) so long as the foreclosing party is a Permitted Mezzanine Loan
Holder, and other material requirements of the related intercreditor
agreement are satisfied.
(iii) Neither the Servicer nor the Special Servicer shall (x)
consent to the foreclosure of any Mezzanine Loan other than by a Permitted
Mezzanine Loan Holder or (y) consent to the transfer of any Mezzanine Loan
except to a Permitted Mezzanine Loan Holder, except, in each case, as
otherwise provided in Section 3.08(a)(i). Neither the consent of the
Servicer nor the consent of the Special Servicer shall be required for the
foreclosure by a Permitted Mezzanine Loan Holder if an event of default
has been declared under the related Loan (and each Rating Agency has been
notified of such event of default). In no event shall a Mezzanine Loan
Holder be required to pay any assumption fee, modification fee or other
service charge in connection with any foreclosure upon Mezzanine Loan
Collateral, transfer of ownership of the related Mortgaged Property to
such Mezzanine Loan Holder and/or assumption of the related Loan. Nothing
herein shall prevent a Mezzanine Loan Holder from appointing a receiver or
trustee with respect to any Mezzanine Loan Collateral, foreclosing upon
any reserves, escrow accounts or cash collateral accounts pledged under
the related Mezzanine Loan (provided none of such accounts have been
pledged under the related Loan) or otherwise taking an assignment of any
cash flows from any Mezzanine Loan Collateral.
(b) As to each Loan which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Loan shall (or, at the mortgagee's option,
may) become due and payable upon the creation of any additional lien or
other encumbrance on the related Mortgaged Property or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
the Servicer for such Loan shall provide notice to the Special Servicer for such
Loan of any request for a waiver thereof, and the Special Servicer (whether or
not such Loan is a Specially Serviced Loan) shall enforce such
due-on-encumbrance clause and in connection therewith shall (i) accelerate
payments thereon or (ii) withhold its consent to such lien or encumbrance unless
the Special Servicer (x) determines, in accordance with the Servicing Standard,
that (1) not accelerating payments on such Loan or (2) granting such consent
would result in a greater recovery on a present value basis (discounting at the
related Mortgage Rate) than would enforcement of such clause or the failure to
grant such consent and (y) receives prior written confirmation from each of the
Rating Agencies that (1) not accelerating such payments or (2) granting such
consent would not, in and of itself, cause a downgrade, qualification or
withdrawal of any of the then-current ratings assigned to the Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, the Special
Servicer shall not agree to modify, waive or amend any term of any Loan in
connection with the taking of, or the failure to take, any action pursuant to
this Section 3.08.
(e) Notwithstanding any other provisions of this Section 3.08, a
Servicer for a Loan may grant a Mortgagor's request for consent to subject the
related Mortgaged Property to an easement or right-of-way for utilities, access,
parking, public improvements or another purpose and may consent to subordination
of the related Loan to such easement or right-of-way, provided that such
Servicer shall have determined (i) in accordance with the Servicing Standard
that such easement or right-of-way will not materially interfere with the
then-current use of the related Mortgaged Property or the security intended to
be provided by such Mortgage and will not materially or adversely affect the
value of such Mortgaged Property and (ii) that no REMIC created hereunder will
fail to qualify as a REMIC as a result thereof and that no tax on "prohibited
transactions" or "contributions" after the Closing Date would be imposed on
either REMIC created hereunder as a result thereof. The Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to cause the
Mortgagor, at the Mortgagor's expense, to obtain legal advice to make the
determination described in clause (ii). If the Servicer is unable to cause the
Mortgagor to obtain such legal advice, and the related loan documents do not
provide that Mortgagor shall pay for such expense, the Servicer shall obtain
such legal advice, if necessary, in accordance with the Servicing Standard, and
the cost thereof shall be deemed a Servicing Advance.
(f) With respect to any Loan which permits release of Mortgaged
Properties through defeasance (each, a "Defeasance Loan"), to the extent
permitted under the related Loan Documents:
(i) The Servicer for such Loan, with the consent of the Special
Servicer, shall effect such defeasance only through the purchase of U.S.
government obligations satisfying both the defeasance rule of the REMIC
Provisions ("Defeasance Collateral") and the requirements of clause (i) of
the definition of Permitted Investments herein which purchase shall be
made in accordance with the terms of such Loan (except that the Servicer
is authorized to accept Defeasance Collateral meeting the foregoing
requirements in spite of more restrictive requirements of the related Loan
Documents); provided, however, that the Servicer shall not accept the
amounts paid by the related Borrower to effect defeasance until such U.S.
government obligations have been identified and an Independent accounting
firm has provided the Servicer a comfort letter that states that such
defeasance is in the correct amount and is in other respects in accordance
with the terms of such Loan and provided, further, that no defeasance
shall be accepted within two years after the Closing Date.
(ii) If such Loan permits the assumption of the obligations of
the related Borrower by a successor mortgagor, the Servicer, with the
consent of the Special Servicer, shall cause the Borrower to pay all
expenses incurred in connection with the establishment of a successor
Borrower that shall be a Single-Purpose Entity and cause an assumption by
such successor Borrower of the defeased obligations under the related
Note. The Servicer shall be permitted to establish a single Single-Purpose
Entity to assume the defeased obligations under all of the Loans that have
been defeased.
(iii) The Servicer for such Loan shall require an Opinion of
Counsel from the related Borrower, at such Borrower's expense, to the
effect that the Trustee has a first priority security interest in the
defeasance deposit and the related U.S. government obligations and that
the assignment thereof is valid and enforceable.
(iv) The Servicer for such Loan shall obtain at the related
Borrower's expense a certificate from an Independent certified public
accountant certifying that the U.S. government obligations are sufficient
to make all scheduled payments under the related Note.
(v) Prior to permitting release of any Mortgaged Property through
defeasance, if such defeasance is a partial defeasance or such Mortgaged
Property relates to a Loan that is (x) a Loan, (y) part of a group of
Crossed Loans or (z) part of a group of Loans made to affiliated Borrowers
that, in each case, in the aggregate, represents one of the ten largest
loans (which for the purposes of this definition shall include groups of
Crossed Loans and groups of Loans made to affiliated Borrowers), the
Servicer shall obtain, at the expense of the related Borrower, written
confirmation from Fitch and S&P that such defeasance would not, in and of
itself, result in a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates.
(vi) Neither the Servicer nor the Special Servicer shall permit
the release of any Mortgaged Property through defeasance unless the
related Borrower establishes to the satisfaction of the Servicer or the
Special Servicer that the lien on such Mortgaged Property will be released
to facilitate the disposition thereof or to facilitate any other customary
commercial transaction.
(vii) Prior to permitting release of any Mortgaged Property
through defeasance, if the related Loan so requires and provides for the
related Borrower to pay the cost thereof, the Servicer shall require such
Borrower to deliver an Opinion of Counsel to the effect that such release
will not cause either REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding or cause a tax to
be imposed on the Trust Fund under the REMIC Provisions.
(viii) Neither the Servicer nor the Special Servicer shall permit
a partial defeasance with respect to any Loan unless the value of the
Defeasance Collateral is at least the amount provided in the related Loan
Documents.
Any costs to the Servicer of obtaining legal advice to make the determinations
required to be made by it pursuant to this Section 3.08(f), or obtaining the
Rating Agency confirmations required by this Section 3.08(f), shall be borne by
the related Borrower as a condition to the Servicer's obligation to effect the
defeasance of the related Loan or advanced as a Servicing Advance by the
Servicer.
(g) With respect to any NCCB Loan which permits NCCB to allow a
Borrower under an NCCB Loan to incur subordinate debt if the NCCB Subordinate
Debt Conditions are met, NCCB may, in accordance with the Servicing Standard,
without the need to obtain any consent hereunder, permit such Borrower to incur
subordinate debt if the NCCB Subordinate Debt Conditions have been met. With
respect to any NCCB Loan which does not contain specific provisions regarding
the incurrence of subordinate debt, or which prohibits the incurrence of
subordinate debt, or which requires the consent of Mortgagee, NCCB may,
nevertheless, in accordance with the Servicing Standard, without the need to
obtain any consent hereunder, permit such Borrower to incur subordinate debt if
the NCCB Subordinate Debt Conditions have been met.
(h) With respect to any Loan, neither the Servicer nor the Special
Servicer shall permit the related Borrower to substitute any real property, any
rights with respect to real property, or any other property interest whatsoever
for the Mortgaged Property securing such Loan as of the Closing Date without
receipt of an Opinion of Counsel, at the expense of the Borrower, to the effect
that the substitution will not cause the related Loan to fail to qualify as a
"qualified mortgage" as defined under Section 860G(a)(3) of the Code while such
Loan is owned by the Lower-Tier REMIC.
(i) Except as provided in Section 3.08(g), with respect to any Loan
pursuant to which the Borrower may not incur additional indebtedness encumbering
the related Mortgaged Property without the consent of the lender, neither the
Servicer nor the Special Servicer shall consent to such additional debt without
written confirmation to the Servicer or the Special Servicer, as applicable, and
the Trustee by each Rating Agency that such modification or waiver would not, in
and of itself, result in a downgrade, qualification or withdrawal of any of the
current ratings assigned to the Certificates. Any costs to the Servicer or
Special Servicer of obtaining the Rating Agency confirmations required by this
Section 3.08(i) shall be borne by the related Borrower as a condition to the
Servicer's or Special Servicer's obligation to agree to any modification or
waiver referred to in the preceding sentence.
Section 3.09 Realization upon Defaulted Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which may
include an REO Acquisition) the ownership of any property securing such Loans as
come into and continue in default as to which no satisfactory arrangements can
be made for collection of delinquent payments, and which are not released from
the Trust Fund pursuant to any other provision hereof. In any case in which a
Mortgaged Property shall have suffered damage such that the complete restoration
of such property is not fully reimbursable by the hazard insurance policies or
flood insurance policies required to be maintained pursuant to Section 3.07, the
Servicer shall not be required to make a Servicing Advance and expend funds
toward the restoration of such property unless the Special Servicer has
determined in its reasonable judgment in accordance with the Servicing Standard
that such restoration will increase the net proceeds of liquidation of such
Mortgaged Property to Certificateholders after reimbursement to the Servicer for
such Servicing Advance and interest thereon and the Servicer has determined that
such Servicing Advance together with accrued and unpaid interest thereon will be
recoverable by the Servicer out of the proceeds of liquidation of such Mortgaged
Property, as contemplated in Section 3.05(a)(iv). The Special Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings (such costs and expenses to be advanced by the Servicer to the
Special Servicer and recoverable by the Servicer as a Servicing Advance),
provided that, in each case, such cost or expense would not, if incurred,
constitute a Nonrecoverable Servicing Advance.
Nothing contained in this Section 3.09 shall be construed to require
the Servicer or the Special Servicer, on behalf of the Trust Fund, to make a bid
on any Mortgaged Property at a foreclosure sale or similar proceeding that is in
excess of the fair market value of such property, as determined by the Servicer
or the Special Servicer in its reasonable and good faith judgment taking into
account the factors described in Section 3.18(d) and the results of any
Appraisal obtained pursuant to the following sentence, all such bids to be made
in a manner consistent with the Servicing Standard. If and when the Special
Servicer or the Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Loan, whether for purposes of bidding at foreclosure or otherwise, the
Special Servicer or the Servicer, as the case may be, is authorized to have an
Appraisal performed with respect to such property, the cost of which Appraisal
shall be paid by the Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be a Servicing Advance) to the effect
that the holding of such personal property by the Trust Fund will not
cause the imposition of a tax on either REMIC created hereunder under the
REMIC Provisions or cause either REMIC created hereunder to fail to
qualify as a REMIC at any time that any Uncertificated Lower-Tier Interest
or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
the Special Servicer shall not, on behalf of the Trustee, obtain title to a
Mortgaged Property in lieu of foreclosure or otherwise, or take any other action
with respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders, would be considered to hold title
to, to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of
such Mortgaged Property within the meaning of CERCLA or any comparable law,
unless (as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on an Environmental Assessment of such Mortgaged
Property performed within the preceding 12 months by an Independent Person who
regularly conducts Environmental Assessments, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a present value basis
than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a present value basis than not
taking such actions.
The cost of any such Environmental Assessment and the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence shall be paid by the related Servicer as a
Servicing Advance. If any such Environmental Assessment so warrants, the Special
Servicer shall, at the expense of the Trust Fund, perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (ii) of the second preceding sentence
have been satisfied.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Loan and (ii) there has been no breach
of any of the representations and warranties set forth in or required to be made
pursuant to Section 6 of the related Mortgage Loan Purchase Agreement for which
the related Mortgage Loan Seller, FINOVA, FINOVA Capital or Llama, as
applicable, could be required to repurchase such Defaulted Loan pursuant to
Section 7 of the related Mortgage Loan Purchase Agreement or Section 9.3 of the
related FINOVA Mortgage Loan Purchase Agreement and Section 5.1 of the Llama
Mortgage Loan Purchase Agreement, as applicable, then the Special Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund and consistent with the Servicing Standard (other than proceeding to
acquire title to the Mortgaged Property) and is hereby authorized at such time
as it deems appropriate to release such Mortgaged Property from the lien of the
related Mortgage.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Servicer and the Certificate
Owners of the Controlling Class monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a Defaulted
Loan as to which the environmental testing contemplated in subsection (c) above
has revealed that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied, in each case until the
earlier to occur of satisfaction of both such conditions, repurchase of the
related Loan by the related Mortgage Loan Seller, FINOVA, FINOVA Capital or
Llama, as applicable, or release of the lien of the related Mortgage on such
Mortgaged Property; provided, however, that with respect to each such report or
Environmental Assessment, if beneficial ownership of the Controlling Class
resides in more than one Certificate Owner, the Special Servicer shall be
responsible only for the expense of providing the first such copy thereof and
shall be entitled to reimbursement from the Trust Fund for the expense of any
additional copies so provided. The Trustee shall, upon request, forward all such
reports to the Certificateholders and each Rating Agency promptly following the
receipt thereof.
(f) The Servicer shall report to the Internal Revenue Service and
the related Mortgagor, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property related to a Loan that
it is required to service and which is abandoned or foreclosed, the receipt of
mortgage interests received in a trade or business and the forgiveness of
indebtedness with respect to any mortgaged property required by Sections 6050J,
6050H and 6050P, respectively, of the Code. The Special Servicer shall provide
the Servicer with such information or reports as the Servicer deems necessary to
fulfill its obligations under this Section 3.09(f) promptly upon the Servicer's
request therefor. The Servicer shall deliver a copy of any such report to the
Trustee and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Servicer no later than the next succeeding P&I Advance
Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Loan, or the receipt by the
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release (and shall include two
copies) signed by a Servicing Officer (or in a mutually agreeable electronic
format that will, in lieu of a signature on its face, originate from a Servicing
Officer) and shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Collection Account pursuant to Section 3.04(a) or remitted to
the Servicer to enable such deposit, have been or will be so deposited. Within
six Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer notifies the Trustee of an exigency) of receipt of
such notice and request, the Trustee (or, to the extent provided in Section
3.01(b), the Servicer or the Special Servicer, as applicable) shall execute such
instruments of satisfaction, deeds of reconveyance and other documents as shall
have been furnished to it by the Servicer, and the Trustee shall release and
deliver the related Mortgage File to the Servicer or Special Servicer, as the
case may be. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Loan, the Servicer or the Special Servicer shall deliver to the Trustee
two copies of a Request for Release signed by a Servicing Officer (or in a
mutually agreeable electronic format that will, in lieu of a signature on its
face, originate from a Servicing Officer). Upon receipt of the foregoing, the
Trustee shall deliver the Mortgage File or any document therein to the Servicer
or the Special Servicer (or a designee), as the case may be. Upon return of the
Mortgage File to the Trustee, the Trustee shall execute an acknowledgment of
receipt.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the release of a Loan or REO Loan, or to
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Note or Mortgage
or to obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Note or Mortgage or otherwise available at law or in equity. The
Special Servicer shall be responsible for the preparation of all such documents
and pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required, that the
proposed action is in the best interest of the Certificateholders and that the
execution and delivery thereof by the Trustee will not invalidate or otherwise
affect the lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, each Servicer
shall be entitled to receive the Servicing Fee with respect to each Loan and REO
Loan (including Specially Serviced Loans, Defeasance Loans and Additional
Collateral Loans) required to be serviced by it at the applicable Servicing Fee
Rate. The Servicing Fee with respect to any Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. The Servicing Fee shall
be payable monthly, on a loan-by-loan basis, from payments of interest on each
Loan and REO Revenues allocable as interest on each REO Loan. In no event will
the Servicer or any Primary Servicer be entitled to retain a servicing fee from
the amount of any P&I Advance, regardless of whether the related Borrower is
obligated to reimburse Servicing Fees or Primary Servicing Fees.
Each Servicer, on behalf of itself or any Primary Servicer, shall be
entitled to recover unpaid Servicing Fees and Primary Servicing Fees in respect
of any Loan or REO Loan required to be serviced by it out of that portion of
related payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and
REO Revenues (in the case of an REO Loan) allocable as recoveries of interest,
to the extent permitted by Section 3.05(a). The right to receive the Servicing
Fee (and, except to the extent set forth in the Primary Servicing Agreement with
respect to a Primary Servicer and except as set forth in this Section 3.11(a),
the related Primary Servicing Fee) may not be transferred in whole or in part
except in connection with the transfer of all of the Servicer's responsibilities
and obligations under this Agreement. The parties hereto acknowledge that the
annual fees of each Rating Agency allocable to the CSFB Loans and the NCCB Loans
have been paid on or prior to the Closing Date by the CSFB Mortgage Loan Seller.
The parties hereto acknowledge that the annual fees of each Rating Agency
allocable to the MSDWMC Loans have been paid on or prior to the Closing Date by
the MSDWMC Mortgage Loan Seller.
Additional servicing compensation in the form of (i) one-half of all
assumption fees paid by the Mortgagors on all Loans that are not Specially
Serviced Loans (but only to the extent that all amounts then due and payable
with respect to such Loans have been paid), (ii) charges for beneficiary
statements or demands and amounts collected for checks returned for insufficient
funds, (iii) all commercially reasonable fees received on or with respect to
Loan modifications for which the Servicer is responsible pursuant to Section
3.20 (but only to the extent actually collected from the related Mortgagor and
only to the extent that all amounts then due and payable after giving effect to
any modification with respect to the related Loan have been paid), (iv)
reasonable and customary consent fees and fees in connection with defeasance, if
any, and (v) other customary charges, in each case only to the extent actually
paid by the related Mortgagor, shall be retained by the Servicer of the related
Loan and shall not be required to be deposited in the Collection Account
maintained by such Servicer pursuant to Section 3.04(a).
Each Servicer also shall be entitled to additional servicing
compensation in the form of: (i) Penalty Charges received on each Loan required
to be serviced by it (other than Specially Serviced Loans) but only to the
extent actually paid by the related Mortgagor and to the extent that all amounts
then due and payable with respect to such Loan (including outstanding interest
on all Advances accrued with respect to such Loan) have been paid to such
Servicer; (ii) interest or other income earned on deposits relating to the Trust
Fund in the Collection Account, any Cash Collateral Account, Interest Reserve
Account and any Lock-Box Account maintained by such Servicer in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to each such account for each period from any Distribution Date to
the immediately succeeding P&I Advance Date); (iii) interest earned on deposits
in the Servicing Accounts maintained by such Servicer that is not required by
applicable law or the related Loan to be paid to the Mortgagor; (iv) to the Pool
I Servicer, collections representing Pool I Prepayment Interest Excess for any
Distribution Date (except to the extent necessary to offset Prepayment Interest
Shortfalls for such Distribution Date), and (v) to the Pool II Servicer,
collections representing Pool II Prepayment Interest Excess for any Distribution
Date (except to the extent necessary to offset Prepayment Interest Shortfalls
for such Distribution Date). Notwithstanding anything to the contrary in clause
(i) of the first sentence of this paragraph or in the last paragraph of Section
3.11(b), (x) the Servicer shall be entitled to that portion, if any, of a
Penalty Charge collected on a Specially Serviced Loan that accrued prior to the
related Servicing Transfer Event and (y) if the Special Servicer has partially
waived any Penalty Charge part of which accrued prior to the related Servicing
Transfer Event, any collections in respect of such Penalty Charge shall be
shared pro rata by the Servicer and the Special Servicer based on the respective
portions of such Penalty Charge to which they would otherwise have been
entitled.
The Pool I Servicer, as initial Pool I Servicer, and Pool II
Servicer, as initial Pool II Servicer hereunder, shall also be entitled to
receive all Primary Servicing Fees on any Loan and REO Loan (including any
Specially Serviced Loan and Defeasance Loan) which is not serviced by a Primary
Servicer, computed on the basis of the related Stated Principal Balance and for
the same period and in the same manner respecting which any related interest
payment due (or deemed to be due) on the related Loan is computed. The Pool I
Servicer's and the Pool II Servicer's right to receive such Primary Servicing
Fees in accordance with the provisions hereof shall not be terminated under any
circumstance, including transfer of the servicing or subservicing of the Loans
to another entity or the termination of such Servicer. The Pool I Servicer and
Pool II Servicer shall be permitted to assign such Primary Servicing Fees to any
party without restriction.
Except as specifically provided herein, the Servicer shall be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts due, except for premiums for any blanket Insurance Policy
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Collection Account, and the
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
Notwithstanding the foregoing paragraphs of this Section 3.11, the
Servicing Fee on any Loan, other than a Specially Serviced Loan, and the
investment income earned on any Principal Prepayment made on such Loan during a
given Due Period, and due the Servicer on the related Distribution Date for
Loans it is required to service shall be reduced by the Prepayment Interest
Shortfall for Loans it is required to service, if any, on such Loan for such
Distribution Date; provided, however, that with respect to any Additional
Collateral Loans as to which Additional Collateral is paid as a Principal
Prepayment, neither the Servicing Fee on such Loan, nor the investment income
earned on any such Principal Prepayment, shall be reduced by the Prepayment
Interest Shortfall.
(b) As compensation for its activities hereunder, the Pool I Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Pool I Specially Serviced Loan (other than the L'Enfant Mortgage Loan and
the 1211 Avenue of the Americas Mortgage Loan) and REO Loan (other than the
L'Enfant Mortgage Loan and the 1211 Avenue of the Americas Mortgage Loan). In
addition, the Pool I Special Servicer shall be entitled to receive 50% of the
Special Servicing Fee with respect to the NCCB Loans, and the remaining 50%
shall be payable to the Pool II Special Servicer. As to each such Specially
Serviced Loan and REO Loan, the Special Servicing Fee shall accrue at the
Special Servicing Fee Rate (in accordance with the same terms of the related
Note as are applicable to the accrual of interest at the Mortgage Rate) and
shall be computed on the basis of the Stated Principal Balance of such Specially
Serviced Loan and for the same period respecting which any related interest
payment due on such Specially Serviced Loan or deemed to be due on such REO Loan
is computed. The Special Servicing Fee with respect to any Specially Serviced
Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. The Special Servicing Fee shall be payable monthly, on a loan-by-loan
basis, to the extent permitted by Section 3.05(a). The right to receive the
Special Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer's responsibilities
and obligations under this Agreement. The Special Servicing Fee with respect to
any related Other Mortgage Loan shall be payable under the related Co-Lender
Agreement (which amount may be netted against amounts payable to the holder of
the Other Note).
Additional servicing compensation in the form of (i) all assumption
fees on all Pool I Specially Serviced Loans, (ii) one-half of all assumption
fees on any Pool I Loans other than Specially Serviced Loans and (iii) all
commercially reasonable extension fees and all fees received on or with respect
to Loan modifications for which the Pool I Special Servicer is responsible
pursuant to Section 3.20(a), but only to the extent actually collected from the
related Mortgagor and only to the extent that all amounts then due and payable
after giving effect to any modification with respect to the related Loan
(including those payable to the Servicer pursuant to Section 3.11(a)) have been
paid, shall be promptly paid to the Pool I Special Servicer by the Servicer and
shall not be required to be deposited in the Collection Account pursuant to
Section 3.04(a).
Additional servicing compensation in the form of (i) all assumption
fees on all NCCB Specially Serviced Loans, (ii) one-half of all assumption fees
on any NCCB Loans other than Specially Serviced Loans and (iii) all commercially
reasonable extension fees and all fees received on or with respect to Loan
modifications for which the Pool II Special Servicer is responsible pursuant to
Section 3.20(a), but only to the extent actually collected from the related
Mortgagor and only to the extent that all amounts then due and payable after
giving effect to any modification with respect to the related Loan (including
those payable to the Pool II Servicer pursuant to Section 3.11(a)) have been
paid, shall be promptly paid in equal amounts to the Pool I Special Servicer and
the Pool II Special Servicer by the Pool II Servicer and shall not be required
to be deposited in the Collection Account pursuant to Section 3.04(a).
The Pool I Special Servicer shall also be entitled to additional
servicing compensation in the form of a Workout Fee with respect to each
Corrected Loan at the Workout Fee Rate (for both Pool I Loans and NCCB Loans).
The "Workout Fee Rate" means (i) 1.0% for any Loan with a Stated Principal
Balance of less than $10,000,000, (ii) 0.75% for any Loan with a Stated
Principal Balance equal to or greater than $10,000,000 but less than $20,000,000
and (iii) 0.5% for any Loan with a Stated Principal Balance equal to or greater
than $20,000,000, applied to each collection of interest and principal
(including scheduled payments, prepayments, Balloon Payments and payments at
maturity) received on such Loan for so long as it remains a Corrected Loan. The
Workout Fee with respect to any Corrected Loan will cease to be payable if such
Loan again becomes a Specially Serviced Loan; provided that a new Workout Fee
will become payable if and when such Loan again becomes a Corrected Loan. If the
Special Servicer is terminated (other than for cause or by resignation), it
shall retain the right to receive any and all Workout Fees payable with respect
to Loans that became Corrected Loans during the period that it acted as Special
Servicer and were Corrected Loans at the time of such termination (and the
successor Special Servicer shall not be entitled to any portion of such Workout
Fees), in each case until the Workout Fee for any such loan ceases to be payable
in accordance with the terms hereof.
A Liquidation Fee will be payable to the Pool I Special Servicer
with respect to each Specially Serviced Loan or REO Loan as to which either
Special Servicer receives any Liquidation Proceeds subject to the exceptions set
forth in the definition of Liquidation Fee. As to each Specially Serviced Loan
or REO Loan, the Liquidation Fee will be payable out of, and will be calculated
by application of a "Liquidation Fee Rate" of (i) 1.0% for any Loan with a
Stated Principal Balance of less than $10,000,000, (ii) 0.75% for any Loan with
a Stated Principal Balance equal to or greater than $10,000,000 but less than
$20,000,000, and (iii) 0.5% for any Loan with a Stated Principal Balance equal
to or greater than $20,000,000, in each case expressed as a percentage of net
liquidation proceeds received with respect to such Specially Serviced Loan or
REO Loan.
Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Loan by any Mortgage Loan
Seller, FINOVA, FINOVA Capital or Llama for a breach of representation or
warranty or by any Mortgage Loan Seller for defective or deficient Loan
documentation, the purchase of any Specially Serviced Loan by the Servicer or
the Special Servicer, the purchase by the Holders of the Class V-1 or Class V-2
Certificates, of any ARD Loan pursuant to Section 9.03 or the purchase of all of
the Loans and REO Properties in connection with an optional termination of the
Trust Fund pursuant to Section 9.01. If, however, Liquidation Proceeds are
received with respect to any Corrected Loan and the Special Servicer is properly
entitled to a Workout Fee, such Workout Fee will be payable based on and out of
the portion of such Liquidation Proceeds that constitute principal and/or
interest on such Loan.
The Pool I Special Servicer will also be entitled to additional fees
in the form of Penalty Charges on each Pool I Specially Serviced Loan and 50% of
such fees on the Pool II Specially Serviced Loans, and the Pool II Special
Servicer shall be entitled to 50% of such fees on the Pool II Specially Serviced
Loans (but in each case only to the extent actually collected from the related
Mortgagor and to the extent that all amounts then due and payable with respect
to such Specially Serviced Loan (including outstanding interest on all Advances
accrued with respect to such Specially Serviced Loan) have been paid to the
Special Servicer). The Pool II Servicer is entitled to Penalty Charges on NCCB
Loans which are not Specially Serviced Loans, and shall have the right to waive
any Penalty Charges with respect to NCCB Loans or NCCB Specially Serviced Loans.
Each Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against hazard
losses pursuant to Section 3.07), if and to the extent such expenses are not
payable directly out of the Collection Account or the REO Account, and the
Special Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
Section 3.12 Reports to the Trustee; Collection Account Statements.
(a) Each Servicer shall deliver, with respect to the Loans each
Servicer is servicing, to the Trustee and the Special Servicer, no later than
1:00 p.m. New York City time on the second Business Day prior to the
Distribution Date, the Servicer Remittance Report in CMSA format (as in effect
from time to time) with respect to the related Distribution Date (which shall
include, without limitation, the Available Distribution Amount for its
respective Loans) including the anticipated P&I Advances and Servicing Advances
for the related Distribution Date and any accrued but unpaid interest on
Advances. As to each Mortgage Loan, each Servicer, with respect to the Loans
each Servicer is servicing, shall provide to the Special Servicer, by the close
of business on each Distribution Date and in a mutually agreeable electronic
format, the amount of each outstanding Advance and the interest accrued thereon
as of such Distribution Date. Each Servicer's responsibilities under this
Section 3.12(a) with respect to Specially Serviced Loans and REO Loans shall be
subject to the satisfaction of the Special Servicer's obligations under Section
3.21.
(b) For so long as a Servicer makes deposits into and withdrawals
from the Collection Account maintained by it, not later than 30 days after each
Distribution Date, such Servicer shall forward to the Trustee a statement
setting forth the status of its Collection Account as of the close of business
on the last Business Day of the related Due Period showing the aggregate amount
of deposits into and withdrawals from such Collection Account of each category
of deposit specified in Section 3.04 and each category of withdrawal specified
in Section 3.05 for the related Due Period.
(c) No later than 1:00 p.m. New York City time on the Servicer
Remittance Date, each Servicer shall deliver or cause to be delivered to the
Trustee the following reports with respect to the Loans serviced by it (and, if
applicable, the related REO Properties, providing the required information as of
the related Determination Date): (i) a Comparative Financial Status Report, (ii)
a Delinquent Loan Status Report; (iii) an Historical Loan Modification Report;
(iv) an Historical Loss Estimate Report; and (v) an REO Status Report. Such
reports shall be in a CMSA electronic format reasonably acceptable to both the
Trustee and the Servicer. Each Servicer and Special Servicer shall also deliver
or cause to be delivered on the Servicer Remittance Date, the Property File (to
the extent prepared by and received from the related L'Enfant Servicer or
L'Enfant Special Servicer in the case of any REO Property or any Mortgaged
Property that constituted or constitutes security for the L'Enfant Mortgage Loan
or the 1211 Avenue of the Americas Servicer or the 1211 Avenue of the Americas
Special Servicer in the case of any REO Property or any Mortgaged Property that
constituted or constitutes security for the 1211 Avenue of the Americas Mortgage
Loan; provided that the Pool I Servicer will make reasonable efforts, consistent
with the Servicing Standard, to obtain such reports from the L'Enfant Servicer
or L'Enfant Special Servicer or the 1211 Avenue of the Americas Servicer or the
1211 Avenue of the Americas Special Servicer, as the case may be).
On the next Business Day succeeding the date received by the
Servicer from the Depositor, each Servicer shall deliver to the Trustee the Loan
Set-Up File. No later than 1:00 p.m. on the Business Day prior to each Servicer
Remittance Date, each Servicer and Special Servicer shall deliver to the Trustee
the Loan Periodic Update File with respect to each Loan serviced by it and REO
Loan (to the extent prepared by and received from the related L'Enfant Servicer
or L'Enfant Special Servicer in the case of any REO Property or any Mortgaged
Property that constituted or constitutes security for the L'Enfant Mortgage Loan
or the 1211 Avenue of the Americas Servicer or the 1211 Avenue of the Americas
Special Servicer in the case of any REO Property or any Mortgaged Property that
constituted or constitutes security for the 1211 Avenue of the Americas Mortgage
Loan; provided that the Servicer will make reasonable efforts, consistent with
the Servicing Standard, to obtain such reports from the L'Enfant Servicer or
L'Enfant Special Servicer or the 1211 Avenue of the Americas Servicer or the
1211 Avenue of the Americas Special Servicer, as the case may be).
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer in writing and on a computer
readable medium reasonably acceptable to the Servicer and the Special Servicer
by 4:00 p.m. New York City time on the fourth Business Day prior to the related
Servicer Remittance Date in CMSA format or shall be provided by means of such
reports so delivered by the Special Servicer to the Servicer in the form so
required. The Servicer's responsibilities under this Section 3.12(c) with
respect to REO Loans and Specially Serviced Loans shall be subject to the
satisfaction of the Special Servicer's obligations under Section 3.12(f). In the
absence of manifest error, each Servicer shall be entitled to conclusively rely
upon, without investigation or inquiry, the information and reports delivered to
it by a Special Servicer, and the Trustee shall be entitled to conclusively rely
upon the Servicer's reports and the Special Servicer's reports without any duty
or obligation to recompute, verify or recalculate any of the amounts and other
information stated therein. Servicer shall provide to the Trustee any new data
that Servicer collects or reports in electronic format in its ordinary course of
servicing but only to the extent reasonably appropriate for the Trustee to
perform its duties hereunder.
(d) Each Servicer shall deliver or cause to be delivered to the
Trustee the following materials, in each case to the extent that such materials
or the information on which they are based are required to be delivered pursuant
to the Loan Documents and have been received by the Servicer:
(i) At least annually by May 31, commencing May 31, 2001, with
respect to each Loan serviced by it and REO Loan (to the extent prepared
by and timely received from the Special Servicer in the case of any
Specially Serviced Loan or REO Loan and to the extent prepared by and
received from the related L'Enfant Servicer or L'Enfant Special Servicer
in the case of any REO Property or any Mortgaged Property that constituted
or constitutes security for the L'Enfant Mortgage Loan or the 1211 Avenue
of the Americas Servicer or the 1211 Avenue of the Americas Special
Servicer in the case of any REO Property or any Mortgaged Property that
constituted or constitutes security for the 1211 Avenue of the Americas
Mortgage Loan; provided that the Pool I Servicer will make reasonable
efforts, consistent with the Servicing Standard, to obtain such reports
from the L'Enfant Servicer or L'Enfant Special Servicer or the 1211 Avenue
of the Americas Servicer or the 1211 Avenue of the Americas Special
Servicer, as the case may be), an Operating Statement Analysis Report and
NOI Adjustment Worksheet for the related Mortgaged Property or REO
Property as of the end of the preceding fiscal year, together with copies
of the operating statements and rent rolls (provided, however, with
respect to cooperative properties, maintenance schedules shall be
delivered in lieu of rent rolls) (but only to the extent the related
Borrower delivers such information to the Servicer and, with respect to
operating statements and rent rolls and with respect to cooperative
properties, maintenance schedules for Specially Serviced Loans and REO
Properties, to the extent timely delivered by the Special Servicer to the
Servicer), for the related Mortgaged Property or REO Property as of the
end of the preceding fiscal year. The Servicer shall use its best
reasonable efforts (but shall not be required to institute litigation) to
obtain said annual operating statements, rent rolls and maintenance
schedules with respect to each of such Loans, other than Specially
Serviced Loans or REO Loans, which efforts shall include sending a letter
to the related Borrower each quarter (followed up with telephone calls)
requesting such annual operating statements, rent rolls and maintenance
schedules until they are received, to the extent such action is consistent
with applicable law and the terms of such Loans.
(ii) Each Servicer shall maintain an Operating Statement Analysis
Report for each Mortgaged Property securing Loans serviced by it (other
than any such Mortgaged Property which is REO Property or constitutes
security for a Specially Serviced Loan) that shall be updated by the
Servicer and delivered to the Trustee within 30 days after receipt by the
Servicer of updated operating statements for such Mortgaged Property,
provided, that the Servicer shall not be required to update the Operating
Statement Analysis Reports more often than quarterly or such other longer
period as operating statements are required to be delivered to the lender
by the Borrower pursuant to the Loan Documents.
The Special Servicer will be required pursuant to Section 3.12(g) to
deliver to the Servicer the information required pursuant to this Section
3.12(d) with respect to Specially Serviced Loans and REO Loans on or before
April 30 of each year, commencing on April 30, 2001, and within ten days after
its receipt of any operating statement for any related Mortgaged Property or REO
Property.
(e) No later than 1:00 p.m. New York City time on each Servicer
Remittance Date, the Servicer shall prepare and deliver to the Trustee, the
Rating Agencies and the Special Servicer, a Servicer Watch List of all Loans
that the Servicer has determined are in jeopardy of becoming a Specially
Serviced Loan. For this purpose, the following Loans shall be deemed to be Loans
that are in jeopardy of becoming Specially Serviced Loans: (i) Loans having a
current Debt Service Coverage Ratio that is 80% or less of the Underwritten Debt
Service Coverage Ratio or having a Debt Service Coverage Ratio that is less than
1.00x or .90x (for Loans secured by Mortgaged Properties that are or include one
or more commercial cooperatives, resort cooperatives or residential cooperative
apartment buildings with five or more cooperative units or a condominium unit
that comprises the residential and commercial buildings), (ii) Loans as to which
any required inspection of the related Mortgaged Property conducted by the
Servicer indicates a problem that the Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property, (iii) Loans which have come to the Servicer's attention in
the performance of its duties under this Agreement, that (A) any tenant
occupying 25% or more of the space in the related Mortgaged Property has vacated
(without being replaced by a comparable tenant and lease) or been the subject of
bankruptcy or similar proceedings or (B) relate to a Borrower or an Affiliate
that is the subject of a bankruptcy or similar proceeding, (iv) Loans that are
at least 60 days delinquent in payment, (v) Loans that are within 60 days of
maturity, (vi) Pool II Loans for which the Pool II Servicer, consistent with the
Servicing Standard, shall determine that a payment default under such Loan is
reasonably likely to occur by virtue of the fact that both (A) the annual
maintenance on the related Mortgaged Property is greater than 5% in arrears and
(B) the related Borrower has less than 10% of annual maintenance in reserve (and
provided that if the annual maintenance on the related Mortgaged Property is
greater than 5% in arrears for six consecutive months, such Loan shall be added
to the Watch List, or if the related Borrower has less than 10% of annual
maintenance in reserve, and the Pool II Servicer determines that such situation
has the potential to have an adverse impact on the related Mortgaged Property,
such Loan shall be added to the Watch List) and (vii) Pool II Loans as to which
any material deferred maintenance is identified and such deferred maintenance is
not cured within 120 days of the identification of the deferred maintenance
item.
The Special Servicer shall report to the Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. Furthermore, the Pool II Servicer and the Pool II Special Servicer will
report to the Rating Agencies any variance exceeding 15% (except with respect to
the first reporting period comparison) related to the following operating
expense line items: management fee, payroll, real estate taxes, insurance,
utilities, repairs and maintenance, general and administrative and ground rent.
In addition, in connection with their servicing of the Loans, the Servicer and
the Special Servicer shall provide to each other and to the Trustee written
notice of any event that comes to their knowledge with respect to a Loan or REO
Property that the Servicer or the Special Servicer, respectively, determines, in
accordance with Servicing Standard, would have a material adverse effect on such
Loan or REO Property, which notice shall include an explanation as to the reason
for such material adverse effect.
(f) By 4:00 p.m., New York City time, on the first Business Day
after each Determination Date, the Special Servicer shall deliver, or cause to
be delivered, to the Servicer and, upon the request of the Trustee, the
Depositor or any Rating Agency, to any such requesting party, the following
reports with respect to the Specially Serviced Loans (and, if applicable, the
related REO Properties), providing the required information as of such
Determination Date: (i) a Delinquent Loan Status Report; (ii) an Historical Loss
Estimate Report; (iii) an Historical Loan Modification Report; (iv) an REO
Status Report; and (v) Comparative Financial Status Reports with respect to all
Specially Serviced Loans. Such reports shall be presented in writing and on a
computer readable medium in a format reasonably acceptable to the Servicer and
the Special Servicer.
(g) The Special Servicer shall deliver or cause to be delivered to
the Servicer and, upon the request of the Trustee, the Depositor or any Rating
Agency, to any such requesting party, the following materials, in each case to
the extent that such materials or the information on which they are based are
required to be delivered by the Borrower pursuant to the Loan Documents and have
been received by the Special Servicer:
(i) Annually, on or before April 30 of each year, commencing in
April 30, 2001, with respect to each Specially Serviced Loan and REO Loan,
an Operating Statement Analysis Report and NOI Adjustment Worksheet, both
in written form and in electronic format reasonably acceptable to the
Servicer, the Special Servicer and the Trustee for the related Mortgaged
Property or REO Property as of the end of the preceding calendar year (but
only to the extent the Special Servicer has received such information from
the Servicer at the time of the servicing transfer pursuant to Section
3.21 necessary to prepare the related Operating Statement Analysis and NOI
Adjustment Worksheet on a prospective basis), together with copies of the
operating statements and rent rolls (provided, however, with respect to
cooperative properties, maintenance schedules shall be delivered in lieu
of rent rolls) for the related Mortgaged Property or REO Property as of
the end of the preceding calendar year. The Special Servicer shall use its
best reasonable efforts (but shall not be required to institute
litigation) to obtain said annual operating statements, rent rolls and
maintenance schedules with respect to each Mortgaged Property constituting
security for a Specially Serviced Loan and each REO Property, which
efforts shall include sending a letter to the related Borrower or other
appropriate party each quarter (followed up with telephone calls)
requesting such annual operating statements, rent rolls and maintenance
schedules until they are received.
(ii) The Special Servicer shall maintain an Operating Statement
Analysis Report, both in written form and in electronic format reasonably
acceptable to the Servicer, the Special Servicer and the Trustee, for each
Mortgaged Property which constitutes security for a Specially Serviced
Loan or is a REO Property that shall be updated by the Special Servicer
and delivered to the Servicer within 10 days after receipt by the Special
Servicer of updated operating statements for each such Mortgaged Property,
provided, that the Special Servicer shall not be required to update the
Operating Statement Analysis Reports more often than quarterly.
(h) The Servicer and the Special Servicer hereby agree to deliver to
each Rating Agency any information such Rating Agency may reasonably request.
The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by the
Servicer or the Special Servicer pursuant to this Agreement.
(i) The Unrestricted Servicer Reports and certain other portfolio
and Mortgage Loan information related to the Pool I Loans shall be available at
the website of the Pool I Servicer at www.capmarkservices.com.
Section 3.13 Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person") each
shall deliver to the Trustee, the Depositor and the Rating Agencies, on or
before April 15 of each year, beginning with April 15, 2001, an Officer's
Certificate stating, as to each signatory thereof, (i) that a review of the
servicing operations of the reporting person during the preceding calendar year
(or such shorter period from the Closing Date to the end of the related calendar
year) and of its performance under this Agreement has been made under such
officer's supervision, (ii) that, to the best of such officer's knowledge, based
on such review, the reporting person has fulfilled all of its obligations under
this Agreement in all material respects throughout such year (or such shorter
period), or, if there has been a material default in the fulfillment of any such
obligation, specifying each such default known to such officer, the nature and
status thereof and what action it proposes to take with respect thereto, (iii)
that, to the best of such officer's knowledge, each related sub-servicer has
fulfilled its obligations under its sub-servicing agreement in all material
respects, or, if there has been a material default in the fulfillment of such
obligations, specifying each such default known to such officer and the nature
and status thereof, and (iv) whether it has received any notice regarding
qualification, or challenging the status, of any REMIC created hereunder as a
REMIC from the IRS or any other governmental agency or body. The Trustee shall
deliver such Officer's Certificate, upon request, to any Certificateholder.
Section 3.14 Reports by Independent Public Accountants.
On or before April 15 of each year, beginning with April 15, 2001,
the Servicer and the Special Servicer (the "reporting person"), each at the
reporting person's expense, shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants ("AICPA") to furnish a statement (an "Accountant's
Statement") to the Trustee, the Depositor and the Rating Agencies, to the effect
that such firm has examined certain documents and records relating to the
servicing of similar mortgage loans under similar agreements and that, on the
basis of such examination conducted substantially in compliance with generally
accepted auditing standards and the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Program for Mortgages serviced for FHLMC, such
servicing has been conducted in compliance with similar agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, generally accepted auditing standards and the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FHLMC require it to report, in which case such exceptions and errors shall be so
reported and that it has obtained from the Servicer or the Special Servicer a
letter of representation regarding certain matters including an assertion by the
Servicer or the Special Servicer as to clause (ii) in the immediately preceding
paragraph and on the basis of such examination in accordance with the standards
established by the AICPA, such assertion is fairly stated in all material
respects.
In rendering such statement, such firm may rely, as to matters
relating to direct servicing of mortgage loans by Sub-Servicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers (rendered within one
year of such statement) of independent public accountants with respect to the
related Sub-Servicer. Each reporting person shall obtain from the related
accountants, or shall prepare, an electronic version of each Accountant's
Statement and provide such electronic version to the Trustee for filing in
accordance with the procedures set forth in Section 3.27 hereof. With respect to
any electronic version of an Accountant's Statement prepared by the reporting
person, the reporting person shall receive written confirmation from the related
accountants that such electronic version is a conformed copy of the original
Accountant's Statement.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide
reasonable access during its normal business hours at each of its principal
servicing offices to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Servicer or to the Special Servicer, as
applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Loans and the Trust Fund within its control which may be required
by this Agreement or by applicable law.
Such access shall be afforded without charge (except that the
Servicer and the Special Servicer may charge a reasonable fee for copies and
out-of-pocket costs to parties other than the Rating Agencies) but only upon
reasonable prior written request and during normal business hours at the offices
of the Servicer or the Special Servicer, as the case may be, designated by it.
Nothing in this Section 3.15 shall detract from the obligation of the Servicer
and the Special Servicer to observe any applicable law prohibiting disclosure of
information with respect to the Mortgagors, and the failure of the Servicer or
the Special Servicer to provide access as provided in this Section 3.15 as a
result of such obligation shall not constitute a breach of this Section 3.15.
Nothing herein shall be deemed to require the Servicer or Special Servicer to
confirm, represent or warrant the accuracy of any other Persons' information or
report, included in any communication from the Servicer, the Special Servicer or
Mortgagor. Notwithstanding the above, the Servicer and Special Servicer shall
not have any liability to the Depositor, the Trustee, any Certificateholder, any
Certificate Owner, the Initial Purchaser, either Underwriter, any Rating Agency,
the L'Enfant Servicer, the 1211 Avenue of the Americas Servicer or any Person to
whom it delivers information pursuant to and in accordance with this Section
3.15 or any other provision of this Agreement for federal, state or other
applicable securities law violations relating to the disclosure of such
information. The Servicer and the Special Servicer may each deny any of the
foregoing persons access to confidential information or any intellectual
property which the Servicer or the Special Servicer is restricted by license or
contract from disclosing. Notwithstanding the foregoing, the Servicer and the
Special Servicer shall maintain separate from such confidential information and
intellectual property, all documentation regarding the Loans that is not
confidential.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee (or its nominee) on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property prior to the close of the third calendar year beginning
after the year in which the Trust Fund acquires ownership of such REO Property
for purposes of Section 860G(a)(8) of the Code, unless the Special Servicer
either (i) is granted an extension of time (an "REO Extension") by the Internal
Revenue Service to sell such REO Property (a copy of which shall be delivered to
the Trustee) or (ii) obtains for the Trustee and the Servicer an Opinion of
Counsel (the cost of which shall be paid as a Servicing Advance), addressed to
the Trustee and the Servicer, to the effect that the holding by the Trust Fund
of such REO Property after such period will not result in the imposition of
taxes on "prohibited transactions" of the Trust Fund or either REMIC created
hereunder as defined in Section 860F of the Code or cause either REMIC created
hereunder to fail to qualify as a REMIC for federal or applicable state tax
purposes at any time that any Uncertificated Lower-Tier Interests or
Certificates are outstanding. If the Special Servicer is granted the REO
Extension or obtains the Opinion of Counsel contemplated by clause (ii) above,
the Special Servicer shall sell such REO Property within such period as is
permitted by such REO Extension or such Opinion of Counsel. Any expense incurred
by the Special Servicer in connection with its being granted the REO Extension
or its obtaining the Opinion of Counsel contemplated by clause (ii) above shall
be an expense of the Trust Fund payable out of the Collection Account pursuant
to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each REO Property. The
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, within one Business Day after
receipt, all REO Revenues, Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of an REO Property. Funds in the REO Account may be
invested only in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall give notice to the Trustee and the Servicer of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. On each Determination Date, the
Special Servicer shall withdraw from the REO Account and deposit into the
Collection Account the aggregate of all amounts received in respect of each REO
Property during the most recently ended Due Period, net of any withdrawals made
out of such amounts pursuant to the preceding sentence; provided, however, that
the Special Servicer may retain in such REO Account, in accordance with the
Servicing Standard, such portion of such balance as may be necessary to maintain
a reasonable reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, on each Determination Date, the Special Servicer shall provide the
Servicer with a written accounting of amounts deposited in the Collection
Account on such date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment) and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all Insurance Policy premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such
REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i)
through (iv) above with respect to such REO Property, the Servicer shall advance
from its own funds, as a Servicing Advance, such amount as is necessary for such
purposes unless (as evidenced by an Officer's Certificate delivered to the
Trustee and the Depositor) if such advances would, if made, constitute
Nonrecoverable Servicing Advances. The Special Servicer shall give the Servicer
and the Trustee not less than five Business Days' notice, together with all
information reasonably requested by the Servicer (upon which the Servicer may
conclusively rely) to the extent in the possession of the Special Servicer or
readily obtainable by the Special Servicer before the date on which the Servicer
is requested to make any Servicing Advance with respect to an REO Property;
provided, however, that only two Business Days' notice shall be required in
respect of Servicing Advances required to be made on an urgent or emergency
basis (which may include, without limitation, Servicing Advances required to
make tax or insurance payments).
(b) Without limiting the generality of the foregoing, the
Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the repair or maintenance thereof or the completion of a
building or other improvement thereon, and then only if more than 10% of
the construction of such building or other improvement was completed
before default on the related Loan became imminent, all within the meaning
of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer as a Servicing Advance)
to the effect that such action will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel. Except as limited above in this Section 3.17 and by Section 3.17(c),
the Special Servicer shall be permitted to cause the Trust Fund to earn "net
income from foreclosure property," subject to the Servicing Standard.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the Acquisition Date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered
to require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
Section 3.18 Sale of Defaulted Loans and REO Properties.
(a) Each of the Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a Defaulted Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Section 2.03(b) and
Section 9.01.
(b) If any Loan becomes a Defaulted Loan and the Special Servicer
has determined in good faith that such Defaulted Loan will become subject to
foreclosure proceedings, the Special Servicer shall promptly so notify in
writing the Trustee and the Servicer. The Special Servicer (or the Servicer, if
the Special Servicer does not exercise its option, or the Directing
Certificateholder, if the Servicer does not exercise its option) may at its
option purchase such Defaulted Loan from the Trust Fund, at a price equal to the
Purchase Price. The Purchase Price for any Defaulted Loan purchased hereunder
shall be deposited into the Collection Account. Upon receipt by the Trustee of
an Officer's Certificate from the Special Servicer to the effect that such
deposit has been made, the Trustee shall notify the Servicer. The Servicer shall
then submit to the Trustee two copies of a Request for Release of the related
Mortgage File signed by a Servicing Officer (or in a mutually agreeable
electronic format that will, in lieu of a signature on its face, originate from
a Servicing Officer) and the Trustee shall release such Mortgage File to the
Special Servicer, the Servicer or the Directing Certificateholder, as the case
may be, and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty as shall
be necessary to vest in the Special Servicer, the Servicer or the Directing
Certificateholder (in that order), as the case may be, ownership of such
Defaulted Loan.
(c) The Special Servicer may offer to sell any Defaulted Loan not
otherwise purchased by the Special Servicer, the Servicer or the Directing
Certificateholder pursuant to subsection (b) above, if and when the Special
Servicer determines, consistent with the Servicing Standard, that such a sale
would produce a greater recovery on a present value basis than would liquidation
of the related Mortgaged Property. Such offering shall be made in a commercially
reasonable manner for a period of not less than 20 days or more than 90 days.
The Special Servicer shall accept the highest cash bid received from any Person
for such Defaulted Loan in an amount at least equal to the Purchase Price
therefor; provided, however, that in the absence of any such bid, the Special
Servicer shall accept the highest cash bid received from any Person that is
determined by the Special Servicer to be a fair price for such Defaulted Loan.
In the absence of any bid determined as provided below to be fair, the Special
Servicer shall proceed with respect to such Defaulted Loan in accordance with
Section 3.09.
The Special Servicer shall use reasonable efforts to solicit bids
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). Such
solicitation shall be made in a commercially reasonable manner for a period of
not less than 90 days or more than 270 days. The Special Servicer shall accept
the highest cash bid received from any Person for such REO Property in an amount
at least equal to the Purchase Price therefor; provided, however, that in the
absence of any such bid, the Special Servicer shall accept the highest cash bid
received from any Person that is determined by the Special Servicer to be a fair
price for such REO Property. If the Special Servicer reasonably believes that it
will be unable to realize a fair price for any REO Property within the time
constraints imposed by Section 3.16(a), then the Special Servicer shall dispose
of such REO Property upon such terms and conditions as the Special Servicer
shall deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest outstanding
cash bid, regardless of from whom received. If the Special Servicer determines
with respect to any REO Property that the offers being made with respect thereto
are not in the best interests of the Certificateholders and that the end of the
period referred to in Section 3.16(a) with respect to such REO Property is
approaching, the Special Servicer shall seek an extension of such period in the
manner described in Section 3.16(a); provided, however, that the Special
Servicer shall use its best efforts, consistent with the Servicing Standard, to
sell any REO Property prior to three years prior to the Rated Final Distribution
Date.
The Special Servicer shall give the Trustee and the Servicer not
less than three Business Days' prior written notice of its intention to sell any
Defaulted Loan or REO Property. No Interested Person shall be obligated to
submit a bid to purchase any Defaulted Loan or REO Property, and notwithstanding
anything to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may bid for or purchase any Defaulted Loan
or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Loan or REO Property, as the case may be, for purposes of Section 3.18(c), shall
be determined by the Special Servicer, if the highest bidder is a Person other
than the Special Servicer or an Affiliate thereof, and by the Trustee, if the
highest bidder is the Special Servicer or an Affiliate thereof. In determining
whether any bid received from the Special Servicer or an Affiliate thereof
represents a fair price for any Defaulted Loan or any REO Property, the Special
Servicer and the Trustee may conclusively rely on the opinion of an Appraiser or
other expert in real estate matters retained at the expense of the Trust Fund by
(i) the Trustee, if the highest bidder is the Special Servicer or an Affiliate
thereof or (ii) the Special Servicer, in any other case. In determining whether
any bid constitutes a fair price for any Defaulted Loan or any REO Property,
such Appraiser or other expert in real estate matters shall be instructed to
take into account, as applicable, among other factors, the period and amount of
any delinquency on the affected Defaulted Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a). The Purchase Price for any Defaulted Loan or REO
Property shall in all cases be deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Loan or REO Property, and the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Loan or any REO Property shall be final and
without recourse to the Trustee or the Trust Fund, except, in the case of the
Trust Fund, as shall be customary in deeds of real property, and if such sale is
consummated in accordance with the terms of this Agreement, neither the Special
Servicer nor the Trustee shall have any liability to any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or the
Trustee.
Section 3.19 Additional Obligations of the Servicer and Special
Servicer; Inspections; Appraisals.
(a) The Servicer (or, with respect to each Specially Serviced Loan
and REO Property and each Loan described in Section 3.19(d) below, the Special
Servicer) shall physically inspect or cause to be physically inspected (which
inspection may be conducted by an independent third party contractor), at its
own expense, each Mortgaged Property with respect to each Mortgage Loan it
services at such times and in such manner as are consistent with the Servicing
Standard, but in any event shall inspect each Mortgaged Property (A) with a
Stated Principal Balance equal to or greater than $2,500,000 or which
constitutes at least 2.0% of the then-current aggregate principal balance of the
Loans at least once every 12 months and (B) with a Stated Principal Balance of
less than $2,500,000 and which does not constitute at least 2.0% of the
then-current aggregate principal balance of the Loans, at least every 24 months,
in each case commencing in August 2000 (or at such lesser frequency as each
Rating Agency shall have confirmed in writing to the Servicer, will not result a
downgrade, qualification or withdrawal of the then-current ratings assigned to
any Class of the Certificates) and (C) if the Loan (i) becomes a Specially
Serviced Loan, (ii) has a Debt Service Coverage Ratio of less than 1.0x and is a
Specially Serviced Loan or (iii) is delinquent for 60 days as soon as
practicable and thereafter at least once every 12 months for so long as such
condition exists. The Servicer or Special Servicer, as applicable, shall send
(i) to S&P, within 20 days of completion, each inspection report and (ii) to
Fitch within 20 days of completion, each inspection report for Significant
Loans.
(b) [Reserved]
(c) With respect to each Loan (other than the L'Enfant Mortgage Loan
and the 1211 Avenue of the Americas Mortgage Loan) that allows the Special
Servicer (on behalf of the Trust Fund) to terminate, or cause the related
Borrower to terminate, the related Manager upon the occurrence of certain events
specified in such Loan, the Special Servicer shall enforce the Trustee's rights
with respect to the Manager under the related Loan and Management Agreement,
provided, that, if such right accrues under the related Loan or Management
Agreement only because of the occurrence of the related Anticipated Repayment
Date, if any, the Special Servicer may in its sole discretion, in accordance
with the Servicing Standard, waive such right with respect to such date. If the
Special Servicer is entitled to terminate the Manager, the Special Servicer
shall promptly give notice to the Directing Certificateholder and each Rating
Agency. In accordance with the Servicing Standard, the Special Servicer shall
cause the Borrower to terminate the Manager, and to recommend a Successor
Manager (meeting the requirements set forth below) only if the Special Servicer
determines in its reasonable discretion that such termination is not likely to
result in successful litigation against the Trust Fund by such Manager or the
related Borrower, or create a defense to the enforcement of remedies under such
Loan.
The Special Servicer shall effect such termination only if the
Special Servicer has, in the case of any Specially Serviced Loan that is a
Significant Loan, received a written confirmation from each of the Rating
Agencies, that the appointment of such Successor Manager would not cause such
Rating Agency to withdraw, downgrade or qualify any of the then-current ratings
on the Certificates. If a Manager is otherwise terminated or resigns under the
related Loan or Management Agreement and the related Borrower does not appoint a
Successor Manager, the Special Servicer shall use its best efforts to retain a
Successor Manager (or the recommended Successor Manager, if any) on terms
substantially similar to the Management Agreement or, failing that, on terms as
favorable to the Trust Fund as can reasonably be obtained by the Special
Servicer. For the purposes of this paragraph, a "Successor Manager" shall be a
professional management corporation or business entity reasonably acceptable to
the Special Servicer which (i) manages, and is experienced in managing, other
comparable commercial and/or multifamily properties, (ii) will not result in a
downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates by each Rating Agency, as confirmed by such Rating Agency in
writing (if required pursuant to the first sentence of this paragraph), and
(iii) otherwise satisfies any criteria set forth in the Mortgage and related
documents.
(d) The Special Servicer shall be required to have received any
Appraisal required in connection with an Appraisal Reduction Event or perform an
internal valuation within 60 days after the occurrence of such Appraisal
Reduction Event (provided that in no event shall the period to receive such
Appraisal exceed 120 days from the occurrence of the event that, with the
passage of time, would become such Appraisal Reduction Event. Upon receipt, the
Special Servicer shall send a copy of such Appraisal or internal valuation to
the Certificate Owners of the Controlling Class; provided, however, that as to
each such Appraisal or internal valuation, if beneficial ownership of the
Controlling Class resides in more than one Certificate Owner, the Special
Servicer shall be responsible only for the expense of providing the first such
copy thereof and shall be entitled to reimbursement from the Trust Fund for the
expense of any additional copies so provided. If neither a required Appraisal is
received, nor an internal valuation completed, by such date, or if, with respect
to any Loan with a Stated Principal Balance of $2,000,000 or less, the Special
Servicer has elected not to obtain an Appraisal or perform an internal
valuation, the Appraisal Reduction for such Loan shall be conclusively
established to be 25% of the Stated Principal Balance of such Loan as of the
date of the related Appraisal Reduction Event. On the first Determination Date
occurring on or after the delivery of such Appraisal or the completion of such
internal valuation, and on each Determination Date thereafter, the Special
Servicer shall calculate and report to the Servicer, and the Servicer shall
report to the Trustee, the Appraisal Reduction taking into account such
Appraisal or internal valuation. The Servicer shall verify the accuracy of the
mathematical computation of the Appraisal Reduction by the Special Servicer and
that the amounts used therein are consistent with the Servicer's records.
Subject to this preceding sentence, the Servicer may conclusively rely on any
report by the Special Servicer of an Appraisal Reduction.
(e) With respect to each Loan as to which an Appraisal Reduction
Event has occurred (unless such Loan has become a Corrected Loan and has
remained current for twelve consecutive Monthly Payments for such purposes,
taking into account any amendment or modification of such Loan) and with respect
to which no other Appraisal Reduction Event has occurred and is continuing, the
Special Servicer shall, within 30 days of each annual anniversary of such
Appraisal Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), or with respect to any Loan with an outstanding principal balance
less than $2,000,000, perform an internal valuation or obtain an Appraisal
(which may be an update of a prior Appraisal), the cost of which shall be paid
by the Servicer as a Servicing Advance. Upon receipt, the Special Servicer shall
send a copy of such Appraisal to the Certificate Owners of the Controlling
Class; provided, however, that as to each such Appraisal, if beneficial
ownership of the Controlling Class resides in more than one Certificate Owner,
the Special Servicer shall be responsible only for the expense of providing the
first such copy thereof and shall be entitled to reimbursement from the Trust
Fund for the expense of any additional copies so provided. Such Appraisal or
internal valuation or percentage calculation of the Appraisal Reduction
described in the preceding paragraph, as the case may be, shall be used to
determine the amount of the Appraisal Reduction with respect to such Loan for
each Determination Date until the next Appraisal is required pursuant to this
Section 3.19(e), and such redetermined Appraisal Reduction shall replace the
prior Appraisal Reduction with respect to such Loan. Notwithstanding the
foregoing, the Special Servicer will not be required to obtain an Appraisal or
perform an internal valuation, as the case may be, with respect to a Loan which
is the subject of an Appraisal Reduction Event if the Special Servicer has
obtained an Appraisal with respect to the related Mortgaged Property within the
12-month period immediately prior to the occurrence of such Appraisal Reduction
Event, unless the Special Servicer, in the exercise of its reasonable judgment,
has reason to believe there has been a material adverse change in the value of
the related Mortgaged Property. Instead, the Special Servicer may use such prior
Appraisal in calculating any Appraisal Reduction with respect to such Loan.
With respect to each Loan as to which an Appraisal Reduction Event
has occurred and which has become a Corrected Loan and has remained current for
twelve consecutive Monthly Payments, taking into account any amendment or
modification of such Loan, and with respect to which no other Appraisal
Reduction Event has occurred and is continuing, the Special Servicer may within
30 days after the date of such twelfth Monthly Payment, order an Appraisal
(which may be an update of a prior Appraisal), or with respect to any Loan with
an outstanding principal balance less than $2,000,000, perform an internal
valuation or obtain an Appraisal (which may be an update of a prior Appraisal),
the cost of which shall be paid by the Servicer as a Servicing Advance. Based
upon such Appraisal or internal valuation, the Special Servicer shall
redetermine and report to the Trustee and the Servicer the amount of the
Appraisal Reduction with respect to such Loan and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such Loan.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Subject to the provisions of this Section 3.20, the Servicer and
the Special Servicer may, on behalf of the Trustee, agree to any modification,
waiver or amendment of any term of any Loan without the consent of the Trustee
or any Certificateholder.
(i) For any Loan, other than a Specially Serviced Loan, the
L'Enfant Mortgage Loan and the 1211 Avenue of the Americas Loan, and
subject to the rights of the Special Servicer set forth below, the
Servicer shall be responsible subject to the other requirements of this
Agreement with respect thereto, for any request by a Borrower for the
consent of the mortgagee or a modification, waiver or amendment of any
term thereof, provided that such consent or modification, waiver or
amendment would not affect the amount or timing of any of the payment
terms of such Loan, result in the release of the related Borrower from any
material term thereunder, waive any rights thereunder with respect to any
guarantor thereof or relate to the release or substitution of any material
collateral for such Loan. To the extent consistent with the foregoing, the
Servicer shall be responsible for the following:
(A) Approving any waiver affecting the timing of receipt of
financial statements from any Borrower (but only to the extent the
same are required to be delivered by the Borrower under the Loan
Documents) provided that such financial statements are delivered no
less than quarterly (or with such lesser frequency as may be
required by the Loan Documents) and within 60 days of the end of the
calendar quarter to which such financial statements relate;
(B) Approving routine leasing activity with respect to leases
for less than the lesser of (a) 30,000 square feet and (b) 20% of
the related Mortgaged Property;
(C) Approving annual budgets for the related Mortgaged
Property, provided that no such budget (1) relates to a fiscal year
in which an Anticipated Repayment Date occurs, (2) provides for the
payment of operating expenses in an amount equal to more than 110%
of the amounts budgeted therefor for the prior year or (3) provides
for the payment of any material expenses to any affiliate of the
Borrower (other than the payment of a management fee to any property
manager if such management fee is no more than the management fee in
effect on the Cut-off Date);
(D) Waiving any provision of a Loan requiring the receipt of a
rating confirmation if such Loan is not a Significant Loan and the
related provision of such Loan does not relate to a "due-on-sale" or
"due-on-encumbrance" clause (which shall be subject to the terms of
Section 3.08 hereof); and
(E) Subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Loan requiring a specified
number of days notice prior to a Principal Prepayment.
(F) With respect to NCCB Loans, the Pool II Servicer shall be
responsible for approving subordinate financing requests for
subordinate debt which meets the NCCB Subordinate Debt Conditions.
(ii) The Special Servicer shall be responsible for any request by
a Borrower for the consent of the mortgagee and any modification, waiver
or amendment of any term of any Loan for which the Servicer is not
responsible, as provided above, or if such consent, request, modification,
waiver or amendment relates to a Loan that is on the most recent Servicer
Watch List, has a Debt Service Coverage Ratio (based on the most recently
received financial statements and calculated on a trailing twelve month
basis) less than the greater of 1.1x or 20% less than the Debt Service
Coverage Ratio as of the Cut-off Date (unless such Loan is a residential
cooperative loan, in which case, the appropriate DSCR is 0.90x) or with
respect to which an event of default has occurred in the preceding 12
months.
(b) All modifications, waivers or amendments of any Loan shall be
(i) in writing and (ii) effected in accordance with the Servicing Standard.
(c) Neither the Servicer nor the Special Servicer, on behalf of the
Trustee, shall agree or consent to any modification, waiver or amendment of any
term of any Loan that is not a Specially Serviced Loan if such modification,
waiver or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Penalty Interest and other
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(e), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Appraiser delivered at
the expense of the related Mortgagor and upon which the Servicer and the
Special Servicer, as applicable, may conclusively rely) of the property to
be released; or
(iv) in the judgment of the Servicer or Special Servicer, as
applicable, otherwise materially impair the security for such Loan or
reduce the likelihood of timely payment of amounts due thereon;
provided, that unless the Mortgage Loan is in default or default is reasonably
foreseeable, the Special Servicer (or, if applicable, the Servicer) has
determined (and may rely upon an Opinion of Counsel in making such
determination) that the modification, waiver or amendment will not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
regulations Section 1-860B-2(b).
(d) Notwithstanding Sections 3.20(b)(i), 3.20(c)(i) and 3.20(c)(ii),
but subject to Section 3.20(e), the Special Servicer may (i) reduce the amounts
owing under any Specially Serviced Loan by forgiving principal, accrued interest
and/or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce the
amount of the Monthly Payment on any Specially Serviced Loan, including by way
of a reduction in the related Mortgage Rate, (iii) forbear in the enforcement of
any right granted under any Note or Mortgage relating to a Specially Serviced
Loan, (iv) waive Excess Interest if such waiver conforms to the Servicing
Standard and/or (v) accept a Principal Prepayment during any Lockout Period;
provided that the related Borrower is in default with respect to the Specially
Serviced Loan or, in the judgment of the Special Servicer, such default is
reasonably foreseeable.
(e) Neither the Servicer nor the Special Servicer shall consent to,
make or permit (i) any modification with respect to any Loan that would change
the Mortgage Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
Maturity Date of such Loan unless both (A) the related Mortgagor is in default
with respect to the Loan or, in the judgment of the Special Servicer, such
default is reasonably foreseeable and (B) in the sole good faith judgment of the
Special Servicer and in accordance with the Servicing Standard, such
modification would increase the recovery on the Loan to Certificateholders on a
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate) or (ii) any modification, waiver or amendment of any term of any Loan that
would either (A) unless there shall exist a default with respect to the Loan (or
unless the Special Servicer determines that a default is reasonably
foreseeable), constitute a "significant modification" under Treasury Regulation
Section 1.860G-2(b) or (B) cause either REMIC created hereunder to fail to
qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions.
Notwithstanding the foregoing, the Special Servicer shall not extend
the date on which any Balloon Payment is scheduled to be due unless (x) the
Special Servicer has obtained an Appraisal of the related Mortgaged Property
(or, with respect to any related Loan with an outstanding principal balance less
than $2,000,000, has performed an internal valuation) in connection with such
extension, which Appraisal or internal valuation supports the determination of
the Special Servicer contemplated by clause (i)(B) of the immediately preceding
paragraph or (y) the related Loan has not been in default at any time during the
twelve-month period preceding the Maturity Date of such Loan, in which case the
Special Servicer, on one occasion only, may extend the date on which such
Balloon Payment is due to a date not more than 60 days after such Maturity Date.
The determination of the Special Servicer contemplated by clause
(i)(B) of the first paragraph of this Section 3.20(e) shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee and the Servicer
and describing in reasonable detail the basis for the Special Servicer's
determination and the considerations of the Special Servicer forming the basis
of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls (provided, however, with respect to cooperative
properties, maintenance schedules shall be delivered in lieu of rent rolls),
occupancy status and property inspections, and shall include an Appraisal of the
related Loan or Mortgaged Property, the cost of which Appraisal shall be
advanced by the Servicer as a Servicing Advance).
(f) In no event shall the Special Servicer (i) extend the Maturity
Date of a Loan beyond a date that is three years prior to the Rated Final
Distribution Date; (ii) extend the Maturity Date of any Loan at an interest rate
less than the lower of (a) the interest rate in effect prior to such extension
or (b) the then prevailing interest rate for comparable loans, as determined by
the Special Servicer by reference to available indices for commercial mortgage
lending; (iii) if the Loan is secured by a ground lease, extend the Maturity
Date of such Loan beyond a date which is 10 years prior to the expiration of the
term of such ground lease; (iv) reduce the Mortgage Rate to a rate below the
lesser of (x) 7.72% per annum and (y) the then prevailing interest rate for
comparable loans, as determined by the Special Servicer by reference to
available indices for commercial mortgage lending; or (v) defer interest due on
any Loan in excess of 5% of the Stated Principal Balance of such Loan; provided
that with respect to clause (iii) above, the Special Servicer gives due
consideration to the term of such ground lease prior to any extension beyond a
date 20 years prior to the expiration of the term of such ground lease.
(g) Neither the Servicer nor the Special Servicer may permit or
modify a Loan to permit a voluntary Principal Prepayment of a Loan (other than a
Specially Serviced Loan) on any day other than its Due Date, (i) unless the
Servicer or Special Servicer also collects interest thereon through the Due Date
following the date of such Principal Prepayment, (ii) unless otherwise permitted
under the related Loan Documents or (iii) unless such Principal Prepayment would
not result in a Prepayment Interest Shortfall.
(h) The Servicer and the Special Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to it (i) as additional servicing compensation, a reasonable or
customary fee for the additional services performed in connection with such
request, and (ii) any related costs and expenses incurred by it. In no event
shall the Special Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer shall notify the Servicer, any related
Sub-Servicers and the Trustee, in writing, of any modification, waiver or
amendment of any term of any Loan (including fees charged the Mortgagor) and the
date thereof, and shall deliver to the Trustee (with a copy to the Servicer) for
deposit in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly (and in any event
within ten Business Days) following the execution thereof. The Servicer and
Special Servicer shall notify the Rating Agencies of any modification, waiver or
amendment of any term of any Loan, except for the granting of approval of
subordinate debt which meets the NCCB Subordinate Debt Conditions (to the extent
permitted hereunder). Copies of each agreement whereby any such modification,
waiver or amendment of any term of any Loan is effected shall be made available
for review upon prior request during normal business hours at the offices of the
Servicer or Special Servicer, as applicable, pursuant to Section 3.15 hereof.
(j) With respect to each Borrower that has been established as a
"bankruptcy-remote entity," the Servicer shall not consent to (x) the amendment
by such Borrower of its organizational documents or (y) any action that would
violate any covenant of such Borrower relating to its status as a separate or
bankruptcy-remote entity. The Servicer shall promptly forward to the Special
Servicer any request received by the Servicer from a Borrower for any such
consent. If a Borrower has been established as a "bankruptcy-remote entity," the
Special Servicer shall not consent to (x) the amendment by such Borrower of its
organizational documents or (y) any action that would violate any covenant of
such Borrower relating to its status as a separate or bankruptcy-remote entity
unless (A) with respect to a Borrower under any Loan, the Special Servicer has
obtained written confirmation from S&P that such amendment or action would not
result in a downgrade or withdrawal of any rating on a Class of Certificates
rated by S&P and (B) with respect to a Borrower under any Significant Loan, the
Special Servicer has obtained written confirmation from Fitch that such
amendment or action would not result in a downgrade, withdrawal or qualification
of any rating on a Class of Certificates rated by such Rating Agency.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan, the Servicer shall immediately give notice thereof to
the Special Servicer, the Trustee and each Rating Agency, shall deliver copies
of the related Mortgage File and Credit File to the Special Servicer and the
Directing Certificateholder and shall use its reasonable best efforts to provide
the Special Servicer with all information, documents and records (including
records stored electronically on computer tapes, magnetic discs and the like)
relating to such Loan that are in the possession of the Servicer or available to
the Servicer without undue burden or expense, and reasonably requested by the
Special Servicer to enable it to assume its functions hereunder with respect
thereto. The Servicer shall use its reasonable best efforts to comply with the
preceding sentence within five Business Days of the occurrence of each related
Servicing Transfer Event and in any event shall continue to act as Servicer and
administrator of such Loan until the Special Servicer has commenced the
servicing of such Loan. The Trustee shall deliver to the Underwriters, the
Initial Purchaser and each Holder of a Certificate of the Controlling Class, a
copy of the notice of such Servicing Transfer Event provided by the Servicer to
the Special Servicer pursuant to this Section.
Upon determining that a Specially Serviced Loan (other than an REO
Loan) has become a Corrected Loan (provided no additional Servicing Transfer
Event is foreseeable in the reasonable judgment of the Special Servicer) and
that no other Servicing Transfer Event is continuing with respect thereto, the
Special Servicer shall immediately give notice thereof and shall return the
related Mortgage File and Credit File to the Servicer and, upon giving such
notice and returning such Mortgage File and Credit File to the Servicer, the
Special Servicer's obligation to service such Corrected Loan shall terminate and
the obligations of the Servicer to service and administer such Loan shall
re-commence.
(b) In servicing any Specially Serviced Loan, the Special Servicer
will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Loan information including correspondence with
the related Mortgagor.
(c) No later than one Business Day after each Determination Date, by
4:00 p.m. New York City time, the Special Servicer shall deliver to the Servicer
a statement, both written and in computer readable format reasonably acceptable
to the Servicer and the Special Servicer (upon which the Servicer may
conclusively rely) describing, on a loan-by-loan and property-by-property basis,
(1) the information described in clause (vii) of Section 4.02(a) with respect to
each Specially Serviced Loan and the information described in clause (viii) of
Section 4.02(a) with respect to each REO Property, (2) the amount of all
payments, Insurance and Condemnation Proceeds and Liquidation Proceeds received
with respect to each Specially Serviced Loan during the related Due Period, and
the amount of all REO Revenues, Insurance and Condemnation Proceeds and
Liquidation Proceeds received with respect to each REO Property during the
related Due Period, (3) the amount, purpose and date of all Servicing Advances
made by the Servicer with respect to each Specially Serviced Loan and REO
Property during the related Due Period, (4) the information described in clauses
(v), (vii), (viii), (xi), (xvi) and (xvii) of Section 4.02(a) and (5) such
additional information or data relating to the Specially Serviced Loan and REO
Properties as the Servicer reasonably requests to enable it to perform its
responsibilities under this Agreement which is in the Special Servicer's
possession or is reasonably obtainable by the Special Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Loans and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special Servicer
to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a
Loan, the Special Servicer shall deliver to each Rating Agency, the Servicer and
the Directing Certificateholder a report (the "Asset Status Report") with
respect to such Loan and the related Mortgaged Property. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Loan;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll, or with respect to cooperative
properties, maintenance schedules and income or operating statement
available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together with
the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law or the terms of the
applicable Loan Documents. If the Directing Certificateholder disapproves such
Asset Status Report, the Special Servicer shall revise such Asset Status Report
and deliver to the Directing Certificateholder, the Rating Agencies and the
Servicer a new Asset Status Report as soon as practicable, but in no event later
than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(e) until the earlier of (a) the failure of
the Directing Certificateholder to disapprove such revised Asset Status Report
in writing within 10 Business Days of receiving such revised Asset Status
Report; (b) a determination by the Special Servicer as set forth below or (c)
the passage of 60 days from the date of preparation of the first Asset Status
Report. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and it has made a
reasonable effort to contact the Directing Certificateholder and (ii) in any
case, shall determine whether any affirmative disapproval by the Directing
Certificateholder described in this paragraph is not in the best interest of all
the Certificateholders pursuant to the Servicing Standard.
Upon making the determination described in subclause (ii) of the
immediately preceding paragraph (but in no event more than 60 days after the
date of preparation of the Asset Status Report), the Special Servicer shall
notify the Trustee of such rejection and deliver to the Trustee a proposed
notice to Certificateholders which shall include a copy of the Asset Status
Report, in electronic format, and the Trustee shall make such notice available
on the Website to all Privileged Persons. If the majority of Certificateholders,
as determined by Voting Rights, fail, within 5 days of the Trustee's sending or
making available such notice, to reject such Asset Status Report, the Special
Servicer shall implement the same. If the Asset Status Report is rejected by a
majority of the Certificateholders, the Special Servicer shall revise such Asset
Status Report as described above. The Trustee shall be entitled to reimbursement
from the Trust Fund for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standard.
No direction of the Directing Certificateholder shall (a) require or
cause the Special Servicer to violate the terms of a Specially Serviced Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each REMIC created hereunder, or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) expose the Servicer, the Special Servicer, the
Depositor, either of the Mortgage Loan Sellers, the Trust Fund, the Trustee or
their Affiliates, officers, directors, employees or agents to any claim, suit or
liability, or (d) materially expand the scope of the Special Servicer's or the
Servicer's responsibilities under this Agreement; and the Special Servicer will
neither follow any such direction if given by the Directing Certificateholder
nor initiate any such actions.
(f) Upon receiving notice of (i) the filing of a case under any
federal or state bankruptcy, insolvency or similar law or the commencing of any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings with respect to a Loan or the related Mortgagor, (ii) the
existence of a material non-payment default or (iii) the request by a Mortgagor
for the amendment or modification of a Loan required to be handled by the
Special Servicer, the Servicer shall immediately give notice thereof, and shall
deliver copies of the related Mortgage File and Credit File to the Special
Servicer and shall use its reasonable best efforts to provide the Special
Servicer with all information relating to the Loan and reasonably requested by
the Special Servicer to enable it to negotiate with the related Mortgagor and
prepare for any such proceedings. The Servicer shall use its reasonable best
efforts to comply with the preceding sentence within 5 Business Days of the
occurrence of each such event, and upon receiving such documents and
information, the Special Servicer shall use its reasonable best efforts to cause
the related Mortgagor to cure any default and/or remedy any such event, work out
or modify the Loan consistent with the terms of this Agreement, and/or prepare
for such proceedings. Notwithstanding the foregoing, the occurrence of any of
the above-referenced events shall not in and of itself be considered a Servicing
Transfer Event.
Section 3.22 Sub-Servicing Agreements.
(a) The Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of its respective obligations under Articles III and IV hereof; provided
that the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) except with respect to the Primary
Servicing Agreements, provides that if the Servicer or the Special Servicer
shall for any reason no longer act in such capacity hereunder (including,
without limitation, by reason of an Event of Default), the Trustee or its
designee shall thereupon assume or may elect not to assume all of the rights
and, except to the extent they arose prior to the date of assumption,
obligations of the Servicer or Special Servicer, as applicable under such
agreement, or, alternatively, may act in accordance with Section 7.02 hereof
under the circumstances described therein; (iii) provides that the Trustee for
the benefit of the Certificateholders shall be a third-party beneficiary under
such Sub-Servicing Agreement, but that (except to the extent the Trustee or its
designee assumes the obligations of the Servicer or the Special Servicer, as
applicable, thereunder as contemplated by the immediately preceding clause (ii))
none of the Trust Fund, the Trustee, any successor Servicer, Special Servicer or
any Certificateholder shall have any duties under such Sub-Servicing Agreement
or any liabilities arising therefrom; (iv) except with respect to the Primary
Servicing Agreements, permits any purchaser of a Loan or the Trustee pursuant to
this Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Loan at its option and without penalty; (v) does not permit the
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund; (vi) does not permit the Sub-Servicer to foreclose on
the related Mortgaged Property or consent to the modification of any Loan
without the prior consent of the Servicer or Special Servicer, as applicable;
(vii) provides that the Sub-Servicer shall act in accordance with the Servicing
Standard; (viii) provides that in the event of an act or failure to act by the
Sub-Servicer that causes the Servicer to be in default of its obligations under
this Agreement, the Sub-Servicer shall be in default of its obligations under
such Sub-Servicing Agreement; and (ix) if such Sub-Servicing Agreement is a
Primary Servicing Agreement with NCCB, provides that upon termination of the
Trust Fund, the owner of the Loans shall, with respect to those Loans serviced
by NCCB, at NCCB's election enter into a servicing agreement with NCCB which is
substantially the same as the Primary Servicing Agreement, reflecting only such
changes as are appropriate to reflect that such Loans are no longer part of the
Trust Fund, or shall pay NCCB the termination fee that would be payable
thereunder. Any successor Servicer or Special Servicer hereunder, upon becoming
successor Servicer or Special Servicer, as applicable, shall have the right to
be assigned and shall have the right to assume any Sub-Servicing Agreements from
the predecessor Servicer or Special Servicer, as applicable. Upon a termination
of the Servicer pursuant to this Agreement, the successor to the Servicer (other
than the Trustee or its designee) shall automatically succeed to the rights and
obligations of the prior Servicer under the Primary Servicing Agreement, subject
to the termination rights set forth therein, it being understood that any such
succession by the Trustee or its designee shall not be automatic but shall be in
the discretion of the Trustee or such designee (except with respect to the NCCB
Primary Servicing Agreement, with respect to which such succession shall be
automatic).
In addition, each Sub-Servicing Agreement entered into by the
Servicer may provide that the obligations of the Sub-Servicer thereunder shall
terminate with respect to any Loan serviced thereunder at the time such Loan
becomes a Specially Serviced Loan. The Servicer shall deliver to the Trustee
copies of all Sub-Servicing Agreements, and any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. For purposes of this Agreement, the Servicer shall
be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Servicer shall notify the Special Servicer, the
Trustee and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer. The Special Servicer shall notify the Servicer, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Servicer or
the Special Servicer, as applicable, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or the Trust Fund) monitor the performance and enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Servicer would require were it the owner
of the Loans. The Servicer or the Special Servicer, as applicable, shall have
the right to remove a Sub-Servicer retained by it in accordance with the terms
of the related Sub-Servicing Agreement upon the Events of Default and other
termination events specified in the related Sub-Servicing Agreement.
(d) If the Trustee or its designee becomes successor Servicer and
elects or is required to assume the rights and obligations of the Servicer or
the Special Servicer, as applicable, under any Sub-Servicing Agreement, the
Servicer or the Special Servicer, as applicable, at its expense, shall deliver
to the assuming party all documents and records relating to such Sub-Servicing
Agreement and the Loans then being serviced thereunder and an accounting of
amounts collected and held on behalf of it thereunder, and otherwise use
reasonable efforts to effect the orderly and efficient transfer of the
Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement,
each of the Servicer and the Special Servicer represents and warrants that it
shall remain obligated and liable to the Trustee and the Certificateholders for
the performance of its obligations and duties under this Agreement in accordance
with the provisions hereof to the same extent and under the same terms and
conditions as if it alone were servicing and administering the Loans for which
it is responsible, and the Servicer, or the Special Servicer, as applicable,
shall pay the fees of any Sub-Servicer thereunder from its own funds or, with
respect to the Primary Servicers, shall permit each to retain the Primary
Servicing Fees from amounts collected by such Primary Servicer. In no event
shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any limited powers
of attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence or misuse of, any such power of attorney by a
Sub-Servicer, and shall be indemnified by the Sub-Servicer, with respect
thereto.
(g) Except with respect to the Primary Servicing Agreements, each
Sub-Servicing Agreement shall provide that, in the event the Trustee or any
other Person becomes a successor Servicer or the Special Servicer, as
applicable, the Trustee or such successor Servicer or the Special Servicer, as
applicable, shall have the right to terminate such Sub-Servicing Agreement at
its option and without a fee.
(h) In the event the Pool II Servicer receives a rating of
"Approved" by S&P and its master servicing of such Loans shall have been
approved by Fitch, the Pool II Servicer may, if it shall so elect, by written
notice to the Depositor, the Pool I Servicer, the Pool I Special Servicer, the
Trustee and the Holders of the Controlling Class, become the Servicer for Loans
34, 35, 36, 92, 135 and 145 on the Mortgage Loan Schedule and the Primary
Servicing Agreement shall terminate with respect to NCCB's rights and
obligations thereunder. In such event, (i) the Pool II Servicer shall service
such Loans in accordance with all of the provisions applicable to the servicing
of NCCB Loans as set forth herein, provided, however, with respect to such
Loans, (a) the Pool II Servicer shall receive as compensation the Primary
Servicing Fee and Servicing Fee applicable to such Loans calculated as if such
Loans were still Pool I Loans, (b) the Pool I Special Servicer shall remain the
Special Servicer of such Loans and (c) with respect to the permitting of
subordinate debt, the standards applicable to Pool I Loans shall continue to
apply, (ii) the Pool I Servicer shall promptly provide the Pool II Servicer with
all documents and records requested by it to enable the Pool II Servicer to
assume the Pool I Servicer's functions hereunder and shall cooperate with the
Pool II Servicer and the Trustee to effect the orderly transfer of the servicing
rights, including, without limitation, taking all actions required of a Servicer
pursuant to Section 7.01(b) hereof as if such Servicer had been terminated and
(iii) if requested by the Pool I Servicer, the Pool II Servicer, the Trustee or
the Depositor, this Agreement shall be amended to reflect the foregoing.
Section 3.23 Representations, Warranties and Covenants of Each
Servicer.
(a) Each Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Depositor
and the Special Servicer, as of the Closing Date, that:
(i) With respect to the Pool I Servicer, such Servicer is a Texas
limited partnership and with respect to the Pool II Servicer, such
Servicer is a corporation, in each case, duly organized, validly existing
and in good standing under the laws of Texas or the United States of
America, and the Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement, except where the failure to so
qualify or comply would not have a material adverse effect on the ability
of the Servicer to perform its obligations hereunder;
(ii) The execution and delivery of this Agreement by the
Servicer, and the performance and compliance with the terms of this
Agreement by the Servicer, will not violate the Servicer's limited
partnership agreement, charter and by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its
property is subject that materially and adversely affects its ability to
perform hereunder;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Servicer, enforceable against the Servicer in
accordance with the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Servicer is not in violation with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which violations are
likely to have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Servicer or its
properties or are likely to have consequences that would materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(v) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations under
this Agreement;
(vi) [Reserved];
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has been obtained or will be obtained prior to the actual performance by
the Servicer of its obligations under this Agreement, and which, if not
obtained would have a materially adverse effect on the ability of the
Servicer to perform its obligations hereunder;
(viii) The Servicer has full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(ix) The Servicer has examined each Sub-Servicing Agreement to
which it is a party, and shall examine each Sub-Servicing Agreement to
which it intends to become a party, and in each such case, the terms of
such Sub-Servicing Agreements are not, or, in the case of any
Sub-Servicing Agreement to be entered into by the Servicer at a future
date, will not be, materially inconsistent with the terms of this
Agreement; and
(x)Each officer, director, employee, consultant or advisor of the
Servicer that has responsibilities concerning the servicing and
administration of Loans is covered by errors and omissions insurance and
the fidelity bond in the amounts and with the coverage required by Section
3.07(c). Neither the Servicer nor any officer, director, employee,
consultant or advisor of the Servicer that is involved in the servicing or
administration of Loans has been refused such coverage or insurance.
(b) [Reserved].
(c) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of Each
Special Servicer.
(a) Each Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor and the Servicer, as of the Closing Date and as to such Special
Servicer, that:
(i) With respect to the Pool I Special Servicer, such Special
Servicer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida and with respect to the
Pool II Special Servicer, such Special Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
United States, and, in each case, the Special Servicer is in compliance
with the laws of each State in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
charter and by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets, or
result in the violation of any law, rule, regulation, order, judgment or
decree to which the Special Servicer or its property is subject;
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) Each officer, director or employee of the Special Servicer
that has or, following the occurrence of a Servicing Transfer Event, would
have responsibilities concerning the servicing and administration of Loans
is covered by errors and omissions insurance and fidelity bond in the
amounts and with the coverage required by Section 3.07(c). Neither the
Special Servicer nor any of its officers, directors or employees that is
or, following the occurrence of a Servicing Transfer Event, would be
involved in the servicing or administration of Loans has been refused such
coverage or insurance;
(viii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions contemplated
by this Agreement, except for any consent, approval, authorization or
order which has not been obtained or cannot be obtained prior to the
actual performance by the Special Servicer of its obligations under this
Agreement, and which, if not obtained would not have a materially adverse
effect on the ability of the Special Servicer to perform its obligations
hereunder;
(ix) The Special Servicing Fee represents reasonable servicing
compensation; and
(x)The Special Servicer has examined each Sub-Servicing Agreement
to which it is a party, and shall examine each Sub-Servicing Agreement to
which it intends to become a party, and in each such case, the terms of
such Sub-Servicing Agreements are not, or, in the case of any
Sub-Servicing Agreement to be entered into by the Special Servicer at a
future date, will not, be materially inconsistent with the terms of this
Agreement.
(b) [Reserved].
(c) The representations and warranties set forth in paragraph (a)
above and the covenant set forth in paragraph (b) above shall survive the
execution and delivery of the Agreement. The Special Servicer shall indemnify
the Trustee and the Trust Fund and hold each of them harmless against any
losses, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments and other costs and expenses resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from a material breach of
the Special Servicer's representations and warranties contained in paragraph (a)
above. Such indemnification shall survive any termination or resignation of the
Special Servicer, and any termination of the Agreement.
Section 3.25 Servicing of the L'Enfant Mortgage Loan, the Crystal
Pavilion/Petry Building Mortgage Loan and the 1211 Avenue of the Americas
Mortgage Loan.
(a) Notwithstanding any of the provisions of Section 4.03 to the
contrary, with respect to any P&I Advance that is made pursuant to Section 4.03
with respect to the L'Enfant Mortgage Loan, such P&I Advance shall not exceed
the amount due with respect to the L'Enfant Trust Fund Note.
(b) To the extent that the Co-Lender Agreement relating to the
L'Enfant Mortgage Loan and the L'Enfant Intercreditor Agreement requires
reimbursement of the L'Enfant Servicer of any Servicing Advance, the Servicer
shall reimburse such amount as a Servicing Advance hereunder.
(c) To the extent that the 1211 Avenue of the Americas Intercreditor
Agreement requires reimbursement of the 1211 Avenue of the Americas Servicer of
any Servicing Advance, the Servicer shall reimburse such amount as a Servicing
Advance hereunder.
(d) With respect to any Servicing Advance to be made hereunder with
respect to the L'Enfant Mortgage Loan or the 1211 Avenue of the Americas
Mortgage Loan, the determination by the L'Enfant Servicer or the 1211 Avenue of
the Americas Servicer, as the case may be, shall be binding upon the party or
parties required to make such Servicing Advance hereunder, both for determining
whether or not such Servicing Advance should be made and determining how such
Servicing Advance should be reimbursed to such party.
(e) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Servicer's obligations and
responsibilities with respect to the L'Enfant Mortgage Loan, Crystal Pavilion/
Petry Building Mortgage Loan or the 1211 Avenue of the Americas Mortgage Loan
are limited by and subject to the terms of the L'Enfant Intercreditor Agreement,
the Crystal Pavilion/ Petry Building Intercreditor Agreement or the 1211 Avenue
of the Americas Intercreditor Agreement, as the case may be, and the related
Co-Lender Agreement.
Section 3.26 Limitation on Liability of the Directing
Certificateholder.
By its acceptance of a Certificate, each Certificateholder confirms
its understanding that the Directing Certificateholder may take actions that
favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates and that the Directing Certificateholder may have
special relationships and interests that conflict with those of Holders of some
Classes of the Certificates and, absent willful misfeasance, bad faith,
negligence or negligent disregard of obligations or duties on the part of the
Directing Certificateholder, agrees to take no action against the Directing
Certificateholder as a result of such a special relationship or conflict.
Section 3.27 Reports to the Securities and Exchange Commission;
Available Information.
(a) The Trustee, at its expense, shall prepare, and the Trustee
shall sign all Forms 8-K and 10-K on behalf of the Depositor, and shall attach
the applicable Exchange Act Reports thereto; provided, however, that the
Depositor shall prepare, sign and file with the Commission the initial Form 8-K
relating to the Trust Fund. Each Exchange Act Report shall be prepared as an
exhibit or exhibits to a Form 8-K.
For each Exchange Act Report, the Servicer and, if applicable, the
Special Servicer, shall prepare (i) manually signed paper versions of their
respective Annual Compliance Reports and (ii) electronic versions of such
reports, which versions shall be prepared in Microsoft Word, Excel, or other
EDGAR compatible format (or in such other electronic format as to which the
Trustee, on the one hand, and the Servicer or the Special Servicer, as
applicable, on the other hand, may agree).
Exchange Act Reports consisting of (i) the Statement to
Certificateholders shall be filed within fifteen days after the related
Distribution Date; and (ii) an Annual Compliance Report shall be filed on or
prior to March 30 of each calendar year commencing in 2001 to the extent
required under the Exchange Act. The Trustee shall file each Exchange Act Report
with the Commission by means of the "EDGAR" system in a manner and in a format
required by Regulation S-T. Manually-signed copies of each Exchange Act Report
shall be delivered by the Trustee to the Depositor, Attention: Thomas Zingalli,
upon written request.
If any Exchange Act Report is incomplete by the date on which such
report is required to be filed under the Exchange Act, the Trustee, or with
respect to any Annual Compliance Report relating to the Servicer, the Servicer,
or, with respect to any Annual Compliance Report relating to the Special
Servicer, the Special Servicer, shall prepare and execute a Form 12b-25 under
the Exchange Act and the Special Servicer shall deliver an electronic version of
such form to the Trustee for filing with the Commission. The Special Servicer
shall deliver the related report in electronic form to the Trustee when such
information is available. The Servicer shall be deemed not to be in default of
Section 3.14 if it fails to deliver a USAP report at the required time provided
that it complies with this paragraph and prepares and executes a Form 12b-25
under the Exchange Act and delivers an electronic version of such form to the
Trustee for filing with the Commission.
Neither the Servicers nor the Special Servicers shall file a Form ID
with respect to the Depositor. Upon receipt of information from the Trustee
indicating that there are fewer than 300 Certificateholders and/or Depository
Participants, in the aggregate, the Trustee shall prepare a Form 15 relating to
the Trust Fund, file such Form 15 with the Commission prior to January 31, 2001
and send a copy thereof to the Depositor, Attention: Thomas Zingalli.
(b) Each Servicer shall, in accordance with such reasonable rules
and procedures as it may adopt, also make available through its Website or
otherwise, any additional information relating to the Loans, the Mortgaged
Properties or the Borrowers, for review by the Depositor, the Rating Agencies
and any other Persons to whom the Servicer believes such disclosure is
appropriate, in each case except to the extent doing so is prohibited by
applicable law or by the related Loan.
(c) The Servicer and the Special Servicer shall make the following
items available at their respective offices during normal business hours, or
shall send such items to any requesting party at the expense of such requesting
party (other than the Rating Agencies, the Depositor and the Underwriters, and
except as otherwise provided in the last sentence of this paragraph) for review
by the Depositor, the Trustee, the Rating Agencies, any Certificateholder, any
Person identified to the Servicer or the Special Servicer, as applicable, by a
Certificateholder as a prospective transferee of a Certificate and any other
Persons to whom the Servicer or the Special Servicer, as applicable, believes
such disclosure to be appropriate: (i) all financial statements, occupancy
information, rent rolls (provided, however, with respect to cooperative
properties, maintenance schedules shall be delivered in lieu of rent rolls),
retail sales information, average daily room rates and similar information
received by the Servicer or the Special Servicer, as applicable, from each
Borrower, (ii) the inspection reports prepared by or on behalf of the Servicer
or the Special Servicer, as applicable, in connection with the property
inspections pursuant to Section 3.19, (iii) any and all modifications, waivers
and amendments of the terms of a Loan entered into by the Servicer or the
Special Servicer, as applicable and (iv) any and all officer's certificates and
other evidence delivered to the Trustee and the Depositor to support the
Servicer's determination that any Advance was, or if made would be, a
Nonrecoverable Advance. Copies of any and all of the foregoing items shall be
available from the Servicer or the Special Servicer, as applicable, or the
Trustee, upon request. Copies of all such information shall be delivered by the
Servicer or the Special Servicer, as applicable, upon request, not more
frequently than quarterly to the Certificate Owners of the Controlling Class (as
identified by the related Depository Participant and for so long as such Class
remains outstanding) at the address specified by such Certificate Owners;
provided, however, that if beneficial ownership of the Controlling Class resides
in more than one Certificate Owner, the Servicer or the Special Servicer, as
applicable, shall be responsible only for the expense of providing the first
such copy of such information and shall be entitled to reimbursement from the
Trust Fund for the expense of any additional copies so provided.
(d) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.28, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(e) Notwithstanding any provisions in this Agreement to the
contrary, the Trustee shall not be required to review the content of any
Exchange Act Report for compliance with applicable securities laws or
regulations, completeness, accuracy or otherwise, and the Trustee shall have no
liability with respect to any Exchange Act Report filed with the Commission or
delivered to Certificateholders. None of the Servicer, the Special Servicer and
the Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee and their
respective Affiliates, agents, directors, officers and employees shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to any statement
or omission or alleged statement or omission therein. None of the Trustee, the
Special Servicer and the Servicer shall have any responsibility or liability
with respect to any Exchange Act Report filed by the Depositor, and each of the
Servicer, the Special Servicer and the Trustee and their respective Affiliates,
agents, directors, officers and employees shall be indemnified and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with any legal action relating to any statement or omission or alleged statement
or omission therein.
(f) Notwithstanding anything to the contrary herein, as a condition
to the Servicer or Special Servicer making any report or information available
upon request to any Person other than the parties hereto, the Servicer and
Special Servicer may require that the recipient of such information acknowledge
that the Servicer and Special Servicer may contemporaneously provide such
information to the Depositor, the Trustee, the Initial Purchaser, any
Underwriter, any Rating Agency and/or Certificateholders or Certificate Owners.
Any transmittal of information by the Servicer or Special Servicer to any Person
other than the Trustee, the Rating Agencies or the Depositor may be accompanied
by a letter from the Servicer or Special Servicer containing the following
provision:
By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public information
regarding the Trust which issued Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 from purchasing or selling such Certificates in
circumstances where the other party to the transaction is not also
in possession of such information. You also acknowledge and agree
that such information is being provided to you for the purposes of,
and such information may be used only in connection with, evaluation
by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial interest
therein.
The Servicer and the Special Servicer may, at its discretion, make
available by electronic media and bulletin board service certain information and
may make available by electronic media or bulletin board service (in addition to
making such information available as provided herein) any reports or information
required by this Agreement that the Servicer or the Special Servicer is required
to provide to any of the Rating Agencies, the Depositor and anyone the Depositor
reasonably designates.
Section 3.28 Lock-Box Accounts and Servicing Accounts.
(a) The Servicer shall administer each Lock-Box Account, Cash
Collateral Account and Servicing Account in accordance with the related Mortgage
or Loan Agreement, Cash Collateral Account Agreement or Lock-Box Agreement, if
any.
(b) For any Loan that provides that a Lock-Box Account will be
established upon the occurrence of certain events specified in the related Loan
Documents, the Servicer (or, with respect to any Specially Serviced Loan, the
Special Servicer) shall establish on behalf of the Trust such Lock-Box Account
upon the occurrence of such events unless the Servicer (or the Special Servicer,
as applicable) determines, in accordance with the Servicing Standard, that such
Lock-Box Account should not be established. Notwithstanding the foregoing, the
Servicer (or the Special Servicer, as applicable) shall establish a Lock-Box
Account for each ARD Loan no later than its Anticipated Repayment Date.
(c) With respect to each Loan requiring the establishment of a
Lock-Box Account, the Servicer, upon receipt of the annual financial statements
of each Mortgagor, shall compare the gross revenue for the related Mortgaged
Property, as set forth in such financial statements, with the history of the
related Mortgagor's deposits (on an annual basis) into such Lock-Box Account and
shall report any discrepancies over 10% to the Special Servicer.
(d) Within 60 days after an escrow account has been established on
behalf of a Mortgagor pursuant to the terms of the related Mortgage, the
Servicer (in accordance with the Uniform Commercial Code) shall notify the
financial institution maintaining such account of the Trustee's security
interest in the funds in such account in those jurisdictions where required in
order to perfect or maintain perfection of the related security interest.
Section 3.29 Interest Reserve Account.
(a) The Servicer shall establish, on or before the Closing Date, and
maintain the Interest Reserve Account on behalf of the Lower-Tier REMIC. The
Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the location of the Interest Reserve Account and, prior to any
change thereof, any new location of the Interest Reserve Account. On each
Servicer Remittance Date ending in any February and on any Servicer Remittance
Date ending in any January which occurs in a year which is not a leap year, the
Servicer shall deposit into the Interest Reserve Account in respect of each
Actual/360 Loan an amount withheld from the related Monthly Payment or Advance
equal to one day's interest on the Stated Principal Balance of such Actual/360
Loan as of the Distribution Date occurring in the month preceding the month in
which such Servicer Remittance Date occurs at the related Net Mortgage Rate, to
the extent a full Monthly Payment or P&I Advance is made in respect thereof (all
amounts so deposited in any consecutive January and February (or, in the case of
a leap year, in any February), "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the
Servicer shall withdraw from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding December and January Interest Accrual
Periods, if any, and deposit such amount (excluding any net investment income
thereon) into the Lower-Tier Distribution Account.
Section 3.30 Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Loans.
(a) Prior to taking any action with respect to a Loan secured by any
Mortgaged Properties located in a "one-action" state, the Special Servicer shall
consult with legal counsel, the fees and expenses of which shall be a Servicing
Advance.
(b) With respect to any Loan which permits the related Borrower,
with the consent or grant of a waiver by the mortgagee, to incur additional
indebtedness (other than as provided in Section 3.08(g)) or to amend or modify
the related Borrower's organizational documents, the Special Servicer may
consent (subject, without limitation, to Section 3.20(e) hereof) to either such
action, or grant a waiver with respect thereto, only if the Special Servicer
determines that such consent or grant of waiver is likely to result in a greater
recovery on a present value basis (discounted at the related Mortgage Rate) than
the withholding of such consent or grant of waiver, and the Special Servicer
first obtains written confirmation from each Rating Agency that such consent or
grant of waiver would not, in and of itself, result in a downgrade,
qualification or withdrawal of any of the then-current ratings assigned to the
Certificates. The Servicer shall not be entitled or required to consent to, or
grant a waiver with respect to, either action, except in accordance with Section
3.08(g) hereof.
(c) With respect to any ARD Loan, so long as no event of default
beyond applicable notice and grace periods has occurred and is continuing, the
Servicer and the Special Servicer shall not take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the date on which principal and all accrued interest (other
than Excess Interest) has been paid in full (the failure of the Borrower to pay
Excess Interest shall not be considered an event of default for purposes of this
paragraph). Nothing in this paragraph shall limit the obligation of the Servicer
and the Special Servicer to establish a Lock-Box Account pursuant to Section
3.28.
(d) With respect to the Loans that (i) require earthquake insurance,
or (ii) (A) at the date of origination were secured by Mortgaged Properties on
which the related Borrower maintained earthquake insurance and (B) have
provisions which enable the Servicer to continue to require the related Borrower
to maintain earthquake insurance, the Servicer shall require the related
Borrower to maintain such insurance in the amount, in the case of clause (i),
required by the Loan and in the amount, in the case of this clause (ii),
maintained at origination, in each case, to the extent such amounts are
available at commercially reasonable rates. Any determination by the Servicer
that such insurance is not available at commercially reasonable rates with
respect to a Loan for which any related Mortgaged Property has a "Probable
Maximum Loss," bounded on the basis of 50 years, in excess of 20% shall be
subject to confirmation by the Rating Agencies that such determination not to
purchase such insurance will not result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates rated by
such Rating Agency.
(e) With respect to Loan No. 59 (the "Berkeley Tower Mortgage
Loan"), to the extent the Servicer shall receive from the tenant (the "Berkeley
Tenant") under that certain Lease Agreement, dated as of December 18, 1998 (the
"Berkeley Lease"), between The Regents of the University of California, as the
Berkeley Tenant, and Encinal Industries, Inc., as landlord, an `early
termination fee' (the "Berkeley Fee") in connection with the exercise by the
Berkeley Tenant of its right to early termination pursuant to Article 4 of the
Berkeley Lease, Servicer shall deposit such Berkeley Fee into a Servicing
Account established as a tenant improvement/leasing commission reserve with
respect to the Berkeley Tower Mortgage Loan. In no event shall the Berkeley Fee
be applied by the Servicer as a Principal Prepayment under the Berkeley Tower
Mortgage Loan.
(f) The Servicer and Special Servicer shall review and be familiar
with the terms and conditions relating to enforcing claims and shall monitor the
dates by which any claim or action is required to be taken under each insurance
policy to realize the full value of such policy for the benefit of
Certificateholders.
(g) The Special Servicer shall not consent to a change of franchise
affiliation with respect to any hotel property that in whole or in part
constitutes the Mortgaged Property securing a Loan unless it obtains written
confirmation from each Rating Agency that such change of franchise affiliation
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the then-current ratings on any Class of Certificates. The Special Servicer
shall not be required to obtain such written consent from S&P if the
then-current principal balance of such Loan is less than 2% of the then-current
aggregate principal balance of the Loans.
(h) With respect to any Loan that permits the related Borrower to
incur subordinate indebtedness secured by the related Mortgaged Property, the
Special Servicer shall enforce the rights of the lender, if any, under the Loan
Documents to require such borrower to require the lender of such subordinate
indebtedness to enter into a subordination and standstill agreement with the
lender, provided that, with respect to any subordinate debt furnished by NCCB
for the NCCB Loans, such agreement shall be in the form attached hereto as
Exhibit K.
(i) The Servicer or Special Servicer, as applicable, shall provide
notice to S&P and, upon written request, prepare and provide S&P with any
internal memorandum prepared by the Servicer or Special Servicer outlining its
analysis and recommendation in accordance with the Servicing Standard (together
with copies of all relevant documentation) for all consents, approvals or
authorizations granted by the Servicer or Special Servicer for transfers,
assumptions, encumbrances, additional debt (except for additional subordinate
debt permitted under the NCCB Subordinate Debt Conditions), material amendments,
grants of easement or encumbrance, franchise affiliation changes and property
manager changes concerning Mortgage Loans, including consents, approvals or
authorizations granted pursuant to Sections 3.08(a), (b) and (i), 3.19(c),
3.20(a)(i) and 3.30(g), if applicable.
(j) Within 10 days after the Closing Date, the Servicer shall notify
the environmental insurer that (A) both the Servicer and the Special Servicer
shall be sent notices under the environmental policy and (B) the Trustee, on
behalf of the Trust, shall be the loss payee under the environmental policy. The
Servicer and the Special Servicer shall abide by the terms and conditions
precedent to payment of claims under the environmental policy and shall take all
such action as may be required to comply with the terms and provisions of such
policy in order to maintain, in full force and effect, such policy.
(k) The Depositor shall, as to each Loan which is secured by the
interest of the related Mortgagor under a ground lease, at its own expense,
promptly (and in any event within 45 days of the Closing Date) notify the
related ground lessor of the transfer of such Loan to the Trust pursuant to this
Agreement and inform such ground lessor that any notices of default under the
related ground lease should thereafter be forwarded to the Trustee.
Section 3.31 REMIC Administration.
(a) The Trustee shall make or cause to be made elections to treat
each of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC under the Code
and if necessary, under State Tax Laws. Each such election will be made on Form
1066 or other appropriate federal tax or information return or any appropriate
state return for the taxable year ending on the last day of the calendar year in
which the Certificates are issued, which in each case shall be signed by the
Trustee. The Trustee shall designate the "regular interests" and the "residual
interests," within the meaning of the REMIC Provisions, in each REMIC as set
forth in the Preliminary Statement hereto. To the extent the affairs of the
Trust Fund are within their control, the Servicer, the Special Servicer and the
Trustee shall not permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in either REMIC created hereunder other than the
Uncertificated Lower-Tier Interests (excluding the Class LR Certificates) and
the Certificates (other than the Class V-1 and Class V-2 Certificates).
(b) The Closing Date is hereby designated as the "Startup Day" for
each REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the largest Percentage Interest of the Class LR
Certificates is hereby designated, and by the acceptance of its Class LR
Certificate agrees to act, as Tax Matters Person for the Lower-Tier REMIC. Any
Holder of a Class LR or Class R Certificate must at all times hold at least a
1.0% Percentage Interest therein. The Holder of the Class R Certificates is
hereby designated, and by the acceptance of its Class R Certificate agrees to
act, as Tax Matters Person for the Upper-Tier REMIC. The Trustee is hereby
designated as the agent of the Tax Matters Person of each of the Lower-Tier
REMIC and the Upper-Tier REMIC and shall perform all the functions thereof, and
the Holders of the Class LR and Class R Certificates, by their acceptance of
such Certificates, agree to such designation.
(d) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it reasonably determines are required with respect to each REMIC
created hereunder and shall sign and file or cause to be filed such Tax Returns
in a timely manner. The expenses of preparing such returns shall be borne by the
Trustee without any right of reimbursement therefor.
(e) The Trustee shall provide (i) upon request by any Transferor of
a Class LR or Class R Certificate, such information to such Transferor and the
IRS as is (x) reasonably necessary for the application of any tax relating to
the transfer of a Class LR or Class R Certificate to any Person who is not a
Disqualified Organization or (y) otherwise required to be provided by Treasury
Regulation Section 1.860E-2 (and in the time and manner required to be provided
to such person under such Regulation), (ii) to the Certificateholders such
information or reports as are required by the Code, the REMIC Provisions or
State Tax Laws including reports relating to interest, original issue discount
and market discount or premium (using the Prepayment Assumption) and (iii) to
the Internal Revenue Service the name, title, address and telephone number of
the person who will serve as the representative of each of the REMICs.
(f) The Trustee shall take such actions and shall cause each REMIC
created hereunder to take such actions as are reasonably within the Trustee's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status thereof as REMICs under the REMIC Provisions
(and the Servicer and Special Servicer shall assist the Trustee, to the extent
reasonably requested by the Trustee to do so). None of the Servicer, the Special
Servicer or the Trustee shall knowingly or intentionally take any action, cause
either REMIC created hereunder to take any action or fail to take (or fail to
cause to be taken) any action reasonably within its control and the scope of
duties more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) cause either REMIC created
hereunder to fail to qualify as a REMIC or (ii) result in the imposition of a
tax under the REMIC Provisions upon either REMIC created hereunder (including
but not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless such party receives an Opinion of Counsel (at the expense of the party
seeking to take such action or, if such party fails to pay such expense, and
such party determines that taking such action is in the best interest of the
Trust Fund and the Certificateholders, at the expense of the Trust Fund, but in
no event at the expense of such party) to the effect that the contemplated
action will not, with respect to either of the REMICs created hereunder, cause
either REMIC to fail to qualify as a REMIC or, unless such party (which is
acceptable to the Trustee) determines that the monetary expense to both REMICs
is not material and in its sole discretion to indemnify (to the extent
reasonably acceptable to the Trustee) the Trust Fund against such tax, result in
the imposition of such a tax. Wherever in this Agreement a contemplated action
may not be taken because the timing of such action might result in the
imposition of a tax on the Trust Fund, or may be taken only pursuant to an
Opinion of Counsel that such action would impose a tax on the Trust Fund, such
action may nonetheless be taken so long as (x) the indemnity given in the
preceding sentence with respect to any taxes that might be imposed on the Trust
Fund has been given and (y) all other preconditions to the taking of such action
have been satisfied. The Trustee shall not take any action (whether or not
authorized hereunder) as to which the Servicer has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action. In addition, prior to taking any action
with respect to the Trust Fund or its assets, or causing the Trust Fund to take
any action, which is not expressly permitted under the terms of this Agreement,
each of the parties hereto will consult with the Trustee or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to either REMIC created hereunder, and such party shall
not take any such action, or cause either such REMIC to take any such action, as
to which the Trustee has advised it in writing that an Adverse REMIC Event could
occur. The Trustee may consult with counsel to make such written advice, and the
cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement. At all times as may be required by the
Code, the Trustee will to the extent within its control and the scope of its
duties as specifically set forth herein, maintain substantially all of the
assets of the Trust Fund as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of either REMIC created hereunder as defined in Section 860F(a)(2)
of the Code, on "net income from foreclosure property" of either REMIC as
defined in Section 860G(c) of the Code, or any other tax is imposed by the Code
or any applicable provisions of state or local tax laws, such tax shall be
charged (i) to a Servicer, if such tax arises out of or results from a breach by
such Servicer of any of its obligations under this Agreement and such breach is
not caused by the breach of another party, (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Agreement and such breach is not caused by the breach of another
party, (iii) to a Special Servicer, if such tax arises out of or results from a
breach by such Special Servicer of any of its obligations under this Agreement
and such breach is not caused by the breach of another party and (iv) otherwise,
against amounts on deposit in the Collection Account, and on the Distribution
Date(s) following such reimbursement the aggregate of such taxes shall be
allocated in reduction of the Optimal Interest Distribution Amount on each Class
entitled thereto in the same manner as if such taxes constituted an Uncovered
Prepayment Interest Shortfall Amount.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an
accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, none of the Servicer or the Trustee
shall accept any contributions of assets to either REMIC created hereunder
unless the Servicer and the Trustee shall have received an Opinion of Counsel
(at the expense of the party seeking to make such contribution) to the effect
that the inclusion of such assets in either REMIC created hereunder will not
cause such REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding or subject either REMIC created hereunder to any tax under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(j) None of the Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which either REMIC created hereunder will receive
a fee or other compensation for services nor, to the extent reasonably within
their control, permit either such REMIC to receive an income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Balance of each Class of Regular Certificates created hereunder would be reduced
to zero is the Rated Final Distribution Date, including for this purpose the
Class N Certificates.
(l) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" (or applicable successor form) for the Upper-Tier REMIC
created hereunder.
(m) None of the Trustee, the Servicer or the Special Servicer shall
sell or dispose of or substitute for any of the Loans (except in connection with
(i) the default, imminent default or foreclosure of a Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of either REMIC created hereunder,
(iii) the termination of either REMIC created hereunder pursuant to Article X of
this Agreement or (iv) a purchase of Loans pursuant to Article II or Section
3.18 of this Agreement) nor acquire any assets for either REMIC created
hereunder, nor sell or dispose of any investments in the Collection Account for
gain, nor accept any contributions to either REMIC created hereunder after the
Closing Date, unless it has received an Opinion of Counsel that such sale or
disposition will not affect adversely the status of either REMIC as a REMIC or
cause either REMIC created hereunder to be subject to a tax on "prohibited
transactions" or "contributions" pursuant to the REMIC Provisions.
(n) The Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Closing Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
Issue Prices of the Certificates, including without limitation, the price,
yield, original issue discount, issue premium and projected cash flow of the
Certificates. In addition, the Servicer, the Special Servicer and the Depositor
shall provide on a timely basis to the Trustee or its designee such information
with respect to the Trust Fund as is in its possession and reasonably requested
by the Trustee to enable it to perform its obligations under this Article. The
Trustee shall be entitled to rely conclusively upon all such information so
provided to it without recalculation or other investigation.
(o) The Trustee shall be entitled to reasonable compensation and to
the reimbursement of its reasonable expenses incurred in the performance of its
duties under this Section 3.31 as may be agreed upon by the Trustee and the
Depositor; provided, however, that the Trustee shall pay out of its own funds,
without any right of reimbursement, any and all ordinary expenses of the Trust
Fund incurred in the performance of its duties under this Article but shall be
reimbursed, except as otherwise expressly provided for herein, by the Trust Fund
for any of its extraordinary expenses, including any taxes or tax-related
payments, any expenses involved in any tax examination, audit or proceeding, and
the expense of any tax-related Opinion of Counsel or other professional advice
requested by the Trustee for the benefit or protection of the
Certificateholders.
Section 3.32 Servicer and Special Servicer May Own Certificates.
(a) The Servicer and any agent of the Servicer in its individual or
any other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Servicer or such agent, except with
respect to Voting Rights, as set forth in the definition of "Certificateholder."
(b) The Special Servicer and any agent of the Special Servicer in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Special
Servicer or such agent, except with respect to Voting Rights, as set forth in
the definition of "Certificateholder."
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date prior to the date on which the
Certificate Balance of the last outstanding Class of Subordinate Certificates
has been reduced to zero, to the extent of the Available Distribution Amount for
such Distribution Date, the Trustee shall transfer or be deemed to transfer such
amounts from the Lower-Tier Distribution Account to the Upper-Tier Distribution
Account in the amounts and priorities set forth in Section 4.01(b) with respect
to each Class of Uncertificated Lower-Tier Interests, and immediately
thereafter, shall make distributions thereof from the Upper-Tier Distribution
Account in the following order of priority, satisfying in full, to the extent
required and possible, each priority before making any distribution with respect
to any succeeding priority from the Available Distribution Amount:
(i) concurrently, to the Class A-1, Class A-2 and Class A-X
Certificates, pro rata, up to the Optimal Interest Distribution Amounts
for each such Class for such Distribution Date;
(ii) to the Class A-1, and Class A-2 Certificates, in reduction
of the Certificate Balances thereof, an amount up to the Principal
Distribution Amount for such Distribution Date, in the following order of
priority:
first, to the Class A-1 Certificates, until the Certificate
Balance thereof has been reduced to zero; and
second, to the Class A-2 Certificates, until the Certificate
Balance thereof has been reduced to zero;
(iii) to the Class A-1, and Class A-2 Certificates, pro rata
(based on the aggregate unreimbursed Collateral Support Deficit previously
allocated to each such Class), until all amounts of such Collateral
Support Deficit previously allocated to such Classes, but not previously
reimbursed, have been reimbursed in full;
(iv) to the Class B Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(v) to the Class B Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(vi) to the Class B Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class B Certificates, but not
previously reimbursed, have been reimbursed in full;
(vii) to the Class C Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(viii) to the Class C Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(ix) to the Class C Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class C Certificates, but not
previously reimbursed, have been reimbursed in full;
(x) to the Class D Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xi) to the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xii) to the Class D Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class D
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) the Class E Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xiv) to the Class E Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xv) to the Class E Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class E Certificates, but not
previously reimbursed, have been reimbursed in full;
(xvi) to the Class F Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xvii) to the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xviii) to the Class F Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class F
Certificates, but not previously reimbursed, have been reimbursed in full;
(xix) to the Class G Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xx) to the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xxi) to the Class G Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class G
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxii) to the Class H Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxiii) to the Class H Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxiv) to the Class H Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class H
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxv) to the Class J Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxvi) to the Class J Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxvii) to the Class J Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class J
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxviii) to the Class K Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxix) to the Class K Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxx) to the Class K Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class K
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxi) to the Class L Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxii) to the Class L Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxxiii) to the Class L Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class L
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxiv) to the Class M Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxv) to the Class M Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxxvi) to the Class M Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class M
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxvii) to the Class N Certificates, in respect of interest, up
to the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxviii)to the Class N Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxxix) to the Class N Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class N
Certificates, but not previously reimbursed, have been reimbursed in full;
and
(xl) to the Class R Certificates, the amount, if any, remaining
in the Upper-Tier Distribution Account after all other distributions
pursuant to this Section 4.01(a) and Section 4.01(e).
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions from the Lower-Tier Distribution Account in
respect of principal or reimbursement of Collateral Support Deficit in an amount
equal to the amount of principal or reimbursement of Collateral Support Deficit
distributable to such Uncertificated Lower-Tier Interest's respective Class of
Related Certificates as provided in Sections 4.01(a) and (c).
During each Interest Accrual Period, each Uncertificated Lower-Tier
Interest shall accrue interest in an amount equal to the principal balance of
each such Uncertificated Lower-Tier Interest multiplied by the Weighted Average
Net Mortgage Rate. On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions in respect of interest in an amount equal
to the sum of (i) the amount of interest that will actually be distributed in
respect of such Uncertificated Lower-Tier Interest's Related Certificate and
(ii) the amount of interest that will actually be distributed in respect of such
Uncertificated Lower-Tier Interest's corresponding Related Component. In all
events, the amount accrued in respect of each Uncertificated Lower-Tier Interest
less the amount actually distributed in respect of such Uncertificated
Lower-Tier Interest shall equal the sum of (i) the Interest Shortfall Amount
allocated to such Uncertificated Lower-Tier Interest's Related Certificates,
(ii) the Interest Shortfall Amount allocated to the Related Component and
attributable to such Uncertificated Lower-Tier Interest and (iii) any
Certificate Deferred Interest allocated to such Uncertificated Lower-Tier
Interest. Any amounts remaining in the Lower-Tier Distribution Account after
payment to the Uncertificated Lower-Tier Interest pursuant to this Section
4.01(b) and Section 4.01(d) and payment of expenses of the Trust Fund shall be
distributed to the Class LR Certificates. Such amounts distributed to the
Uncertificated Lower-Tier Interests in respect of principal, interest and
reduction of Collateral Support Deficit with respect to any Distribution Date
are referred to herein collectively as the "Lower-Tier Distribution Amount" and
shall be made by the Trustee by depositing such Lower-Tier Distribution Amount
in the Upper-Tier Distribution Account.
As of any date, payments of principal in respect of the Loans and
the Collateral Support Deficit shall be allocated to the Uncertificated
Lower-Tier Interests such that the sum of the principal balance after
application of any Collateral Support Deficit of each Uncertificated Lower-Tier
Interest and the cumulative amount of Collateral Support Deficit allocated to
such Class of Uncertificated Lower-Tier Interests equals the sum of the
Certificate Balance of the Related Certificates after the application of any
Collateral Support Deficit with respect thereto and the cumulative amount of
Collateral Support Deficit allocated to such Class of Related Certificates. The
initial principal balance of each Uncertificated Lower-Tier Interest equals the
respective Original Lower-Tier Principal Amount. The interest rate with respect
to each Uncertificated Lower-Tier Interest will be the Weighted Average Net
Mortgage Rate.
Interest Shortfall Amounts allocated to the Class A-X Certificates
shall be attributed first, to the most senior Uncertificated Lower-Tier Interest
outstanding to the extent of its Related Component and, then, to the next most
senior Uncertificated Lower-Tier Interest to the extent of its Related
Component, until all such amounts are allocated. Any amounts so allocated shall
have the same seniority as interest payments due on the Class A-X Certificates.
Interest shall be treated as accrued rather than paid on an Uncertificated
Lower-Tier Interest to the extent that its Related Class of Certificates is
treated as earning Certificate Deferred Interest, and any such interest shall be
added to the principal balance of such Uncertificated Lower-Tier Interest so as
to cause its principal balance to equal the principal balance of its Related
Class of Certificates. Prepayment Interest Shortfalls shall be allocated to each
Class of Uncertificated Lower-Tier Interests pro rata on the basis of their
respective interest entitlements.
(c) Notwithstanding the foregoing, on each Distribution Date
occurring on or after the date on which the Certificate Balance of the last
outstanding Class of Subordinate Certificates has been reduced to zero, the
Trustee shall apply amounts on deposit in the Upper-Tier Distribution Account in
the following order of priority: (i) concurrently, to the Class A-1, Class A-2
and Class A-X Certificates, pro rata, in respect of the Optimal Interest Amount
allocable to each such Class; (ii) to the Class A-1, and Class A-2 Certificates,
pro rata in reduction of the Certificate Balances thereof, until the Certificate
Balance of each such Class has been reduced to zero; and (iii) to the Class A-1,
and Class A-2 Certificates, pro rata (based on the aggregate unreimbursed
Collateral Support Deficit previously allocated to such Class) until all amounts
of such Collateral Support Deficit previously allocated to such Classes but not
previously reimbursed have been reimbursed in full.
(d) On each Servicer Remittance Date, the Servicer shall deposit all
Prepayment Premiums and Yield Maintenance Charges in the Lower-Tier Distribution
Account for payment to the Uncertificated Lower-Tier Interests. On each
Distribution Date, the Trustee shall withdraw from the Lower-Tier Distribution
Account an aggregate amount equal to all Prepayment Premiums and Yield
Maintenance Charges actually collected on the Loans or any REO Loans during the
related Due Period and shall distribute such amount to the Uncertificated
Lower-Tier Interests, pro rata in proportion to their outstanding principal
balances.
(e) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent
Prepayment Premiums and Yield Maintenance Charges actually collected on Loans or
REO Loans during the related Due Period and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to Section 4.01(d), and shall
distribute such amounts as follows:
(i) Prepayment Premiums shall be distributed to the Class A-1,
Class A-2, Class B, Class C, Class D, Class E and Class F Certificates, in
an amount equal to the product of (a) a fraction whose numerator is the
amount distributed as principal to such Class on such Distribution Date,
and whose denominator is the total amount distributed as principal to the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M and Class N Certificates on
such Distribution Date, (b) 25% and (c) the total amount of Prepayment
Premiums collected during the related Due Period. Any Prepayment Premiums
collected during the related Due Period and remaining after such
distributions shall be distributed to the Holders of the Class A-X
Certificates; and
(ii) Yield Maintenance Charges shall be distributed to the Class
A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates, in an amount equal to the product of (a) a fraction whose
numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed
as principal to the Class A-1, Class A-2, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class
N Certificates on such Distribution Date, (b) the Base Interest Fraction
for the related Principal Prepayment and such Class of Certificates and
(c) the aggregate amount of Yield Maintenance Charges collected on such
Principal Prepayment during the related Due Period. Any Yield Maintenance
Charges collected during the related Due Period remaining after such
distributions shall be distributed to the Holders of the Class A-X
Certificates.
Following the reduction of the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E and Class F Certificates to
zero, the Trustee shall distribute to the Class A-X Certificates all Yield
Maintenance Charges and Prepayment Premiums actually received during the related
Due Period with respect to the Loans and remitted in respect of Uncertificated
Lower-Tier Interests pursuant to Section 4.01(d).
(f) On any applicable Distribution Date, (i) any Excess Interest
collected in respect of the CSFB Loans for such Distribution Date shall be
distributed from the Excess Interest Distribution Account to the Class V-1
Certificates and (ii) any Excess Interest collected in respect of the MSDWMC
Loans for such Distribution Date shall be distributed from the Excess Interest
Distribution Account to the Class V-2 Certificates.
(g) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise specifically provided in Sections 4.01(h), 4.01(i) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates) and is the registered owner of Certificates
with an aggregate initial Certificate Balance (or in the case of the Class A-X
Certificates, a Notional Balance) of at least $5,000,000 or, in the case of the
Class V-1, Class V-2 Certificates, a Percentage Interest equal to 25% or, in the
case of the Class R or Class LR Certificates, a Percentage Interest equal to
13.73%, or otherwise by check mailed to the address of such Certificateholder as
it appears in the Certificate Register. The final distribution on each
Certificate (determined without regard to any possible future reimbursement of
Collateral Support Deficit previously allocated to such Certificate) shall be
made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Trustee or such other location specified in
the notice to Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Depositor, the Servicer, the Special Servicer, the Underwriters or the Initial
Purchaser shall have any responsibility therefor except as otherwise provided by
this Agreement or applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than two Business Days following the related P&I Advance Determination
Date, post a notice on the Website to the effect that no interest shall accrue
on such Certificates from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Definitive
Certificates of any Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held uninvested in trust and credited to the account or accounts of
the appropriate non-tendering Holder or Holders. If any Definitive Certificates
as to which notice has been given pursuant to Section 4.01(h) shall not have
been surrendered for cancellation within six months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining
non-tendering Definitive Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Definitive Certificates shall
not have been surrendered for cancellation, the Trustee, directly or through an
agent, shall take such steps to contact the remaining non-tendering Definitive
Certificateholders concerning the surrender of their Certificates as it shall
deem appropriate. The costs and expenses of holding such funds in trust and of
contacting such Definitive Certificateholders following the first anniversary of
the delivery of such second notice to the non-tendering Certificateholders shall
be paid out of such funds. No interest shall accrue or be payable to any
Definitive Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Definitive Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(h).
(i) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective Class
otherwise entitled to distributions of interest and principal on such Class on
the relevant Distribution Date; provided, however, that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 10.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(i) as if such Holder had failed to surrender
its Certificates.
(j) Shortfalls in the Available Distribution Amount on any
Distribution Date resulting from Uncovered Prepayment Interest Shortfalls shall
be allocated to each Class of Regular Certificates, pro rata, based on the
Accrued Certificate Interest Amount distributable to each such Class on such
Distribution Date. The amount by which the servicing compensation is to be
reduced in connection with Prepayment Interest Shortfalls pursuant to the last
paragraph of Section 3.11(a) shall be deposited by the Servicer into the
Collection Account on or prior to the Servicer Remittance Date.
(k) Shortfalls in the Available Distribution Amount resulting from
unanticipated Trust Fund indemnification expenses incurred pursuant to Section
6.03 and Section 8.05 shall be allocated to the most subordinate Class of
Certificates then outstanding, until the balance thereof equals zero, and then
to the next most subordinate Class.
Section 4.02 Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others.
(a) On each Distribution Date, based solely upon the information
regarding the Loans set forth in the Servicer Remittance Report prepared by the
Servicer and the other reports prepared by the Servicer and Special Servicer
relating to such Distribution Date, and only to the extent such information is
provided to the Trustee by the Servicer or Special Servicer, the Trustee shall
prepare and make available, and, upon request, forward, to any interested party,
including, but not limited to, each Holder of a Certificate, with copies to the
Depositor, the Trustee and any of its designees, the Servicer, the Special
Servicer, the Underwriters, each Rating Agency, Bloomberg, L.P., the Trepp
Group, Charter Research Corporation and Intex Solutions, Inc. and, if requested,
any potential investors in the Certificates, a written report (a "Statement to
Certificateholders") setting forth the following information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates applied to
reduce the respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable
to (A) such Class's Optimal Interest Distribution Amount and, separately
stated, the portion thereof representing the Unpaid Interest Shortfall
Amount for such Class and (B) Prepayment Premiums and Yield Maintenance
Charges;
(iii) separately stated, the aggregate amounts of Uncovered
Prepayment Interest Shortfall Amounts, Certificate Deferred Interest and
indemnification expenses of the Trust Fund allocable to the Holders of
each Class of Certificates on such Distribution Date;
(iv) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Regular Certificates, before
and after giving effect to the distributions made on such Distribution
Date, separately identifying any reduction in the aggregate Certificate
Balance (or, in the case of the Class A-X Certificates, the aggregate
Notional Balance) of each such Class due to any Collateral Support
Deficit;
(v) the Pass-Through Rate for each Class of Certificates
applicable to such Distribution Date;
(vi) the number of outstanding Loans and the aggregate unpaid
principal balance of the Loans at the close of business on the related
Distribution Date;
(vii) the number and aggregate unpaid principal balance of Loans
(A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C) delinquent
90 days or more, (D) that are Specially Serviced Loans and not delinquent,
(E) as to which foreclosure proceedings have been commenced or (F) with
respect to which the related Borrowers are in bankruptcy;
(viii) with respect to any REO Loan as to which the related
Mortgaged Property became an REO Property during the preceding calendar
month, the city, state, property type, latest Debt Service Coverage Ratio,
Stated Principal Balance and the unpaid principal balance of such Loan;
(ix) as to any Loan repurchased by a Mortgage Loan Seller,
FINOVA, FINOVA Capital or Llama or otherwise liquidated or disposed of
during the related Due Period, (A) the Loan Number of the related Loan and
(B) the amount of proceeds of any repurchase of a Loan, Liquidation
Proceeds and/or other amounts, if any, received thereon during the related
Due Period and the portion thereof included in the related Available
Distribution Amount for such Distribution Date;
(x) with respect to any REO Property included in the Trust Fund
at the close of business on the related Due Date (A) the Loan Number of
the related Loan, (B) the value of such REO Property based on the most
recent Appraisal or valuation, and (C) the aggregate amount of income and
other revenues collected by the Special Servicer with respect to such REO
Property during the related Due Period and the portion thereof included in
the related Available Distribution Amount for such Distribution Date;
(xi) with respect to any REO Property sold or otherwise disposed
of during the related Due Period and for which a Final Recovery
Determination has been made, (A) the Loan Number of the related Loan, (B)
the amount of sale proceeds and other amounts, if any, received in respect
of such REO Property during the related Due Period and the portion thereof
included in the related Available Distribution Amount for such
Distribution Date and (C) the date of the Final Recovery Determination;
(xii) the amount of Principal Prepayments (in the aggregate) made
during the related Due Period, the amount of any Yield Maintenance Charges
and/or Prepayment Premiums (in the aggregate) paid during the related Due
Period and the aggregate amount of any Prepayment Interest Shortfalls not
covered by the Servicer for such Distribution Date;
(xiii) the amount of Servicing Advances and P&I Advances
outstanding (net of reimbursed Advances) which have been made by the
Servicer or the Trustee in the aggregate and by Mortgaged Property or
Loan, as the case may be;
(xiv) the aggregate amount of Servicing Fees and Primary
Servicing Fees retained by or paid to the Servicer or any Primary Servicer
and Special Servicing Fees retained by or paid to the Special Servicer
during the related Due Period;
(xv) the amount of any Appraisal Reduction Amounts allocated
during the related Due Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Due Period; and the total
Appraisal Reduction Amounts as of such Distribution Date on a loan-by-loan
basis;
(xvi) the Collateral Support Deficit, if any for such
Distribution Date;
(xvii) the Pass-Through Rate for each Class of Certificates
applicable for such Distribution Date;
(xviii) Trust Fund expenses incurred during the related Due
Period;
(xix) the amount of Collateral Support Deficit; and
(xx) ratings of the Rating Agencies on all applicable Classes of
Certificates.
In the case of information furnished pursuant to subclauses (i),
(ii) and (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall make available, and,
upon written request, forward to each Holder of a Class R or Class LR
Certificate a copy of the reports forwarded to the other Certificateholders on
such Distribution Date and a statement setting forth the amounts, if any,
actually distributed with respect to the Class R or Class LR Certificates on
such Distribution Date. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that it provided substantially comparable
information pursuant to any requirements of the Code as from time to time in
force.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall make available, and, upon written request, send to each
Person who at any time during the calendar year was a Certificateholder of
record, a report summarizing on an annual basis (if appropriate) the items
provided to Certificateholders pursuant to Section 4.02(a)(ii) above and such
other information as may be required to enable such Certificateholders to
prepare their federal income tax returns. Such information shall include the
amount of original issue discount accrued on each Class of Certificates held by
Persons other than Holders exempted from the reporting requirements and
information regarding the expenses of the Trust. Such requirement shall be
deemed to be satisfied to the extent such information is provided pursuant to
applicable requirements of the Code from time to time in force.
(b) On or prior to each Distribution Date, based on information
provided in reports prepared by the Servicer and the Special Servicer and
delivered to the Trustee in accordance herewith, the Trustee shall make
available via the Website or, upon request, forward to any interested party (i)
the related Statement to Certificateholders, (ii) the Loan Periodic Update File,
Loan Set-Up File, Bond Level File and Collateral Summary File, (iii) the
Unrestricted Servicer Reports and (iv) as a convenience for interested parties
(and not in furtherance of the distribution thereof under the securities laws),
the Prospectus Supplement, the Prospectus and this Agreement. The Trustee shall
also make each Statement to Certificateholders available to any interested party
via its fax-on-demand service which can be accessed by calling (301) 815-6610.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Servicer and the Special
Servicer and delivered to the Trustee in accordance herewith, the Trustee shall
make available via the Website or, upon request, forward, solely to Privileged
Persons, (i) the Restricted Servicer Reports and (ii) the Property File.
The Trustee shall also make available to any Privileged Person the
Investor Q&A Forum. The "Investor Q&A Forum" shall be a service offered by the
Trustee, as facilitator, through the Website and shall permit users to (i)
submit questions to the Trustee via e-mail, which questions relate to the Loans
or the Mortgaged Properties ("Investor Inquiries"), and (ii) view Investor
Inquiries previously submitted and the answers thereto. Upon receipt of a
submission from a user, the Trustee shall forward the Investor Inquiry to either
the Servicer (if such Investor Inquiry relates to a Loan that is not a Specially
Serviced Loan) or the Special Servicer (if such Investor Inquiry relates to a
Specially Serviced Loan) within 4 Business Hours of receipt thereof. With
respect to any Investor Inquiry forwarded to the Servicer, within one Business
Day of receipt of such Investor Inquiry from the Trustee, the Servicer shall
determine whether answering such Investor Inquiry would not be in the best
interests of the Trust and/or the Certificateholders. If the Servicer determines
that answering such Investor Inquiry would be in the best interests of the Trust
and/or the Certificateholders, the Servicer shall forward a copy of such
Investor Inquiry to the Special Servicer and notify the Special Servicer of its
determination. The Special Servicer shall notify the Servicer within two
Business Days of receipt of such determination if it agrees or disagrees with
the Servicer's determination. If the Special Servicer disagrees with the
Servicer's determination, the Servicer shall not answer such Investor Inquiry
and shall promptly notify the Trustee, which shall notify the Person who
submitted such Investor Inquiry. If the Special Servicer fails to respond within
such two Business Day period, the Special Servicer shall be deemed to agree with
the Servicer's determination. Within one Business Day following the Special
Servicer's agreement or deemed agreement with the Servicer's determination (with
respect to Investor Inquiries that relate to Loans that are not Specially
Serviced Loans) or within two Business Days following receipt of an Investor
Inquiry from the Trustee by the Special Servicer (with respect to Specially
Serviced Loans), the Servicer or the Special Servicer, respectively, shall reply
to the Investor Inquiry with (A) the answer to such Investor Inquiry, or (B) if
such Investor Inquiry cannot reasonably be answered within such one Business
Day, such longer period of time as is necessary to answer such Investor Inquiry,
provided such longer period of time shall be commercially reasonable (which it
shall then be required to adhere to). Upon receipt of any such answer from the
Servicer or the Special Servicer, the Trustee shall post (within 4 Business
Hours of receipt of such answer) such Investor Inquiry and the related answer
(or a statement concerning the additional time necessary until such answer shall
be made available) to the Website. If the Servicer or the Special Servicer
determines, in its respective sole discretion, that answering any Investor
Inquiry would not be in the best interests of the Trust and/or the
Certificateholders, it shall not be required to answer such Investor Inquiry,
and shall promptly notify the Trustee, who shall notify the Person who submitted
such Investor Inquiry.
The Servicer and the Special Servicer shall not be required to
confirm, represent or warrant the accuracy or completeness of any other Person's
information or report included in any communication from the Servicer or the
Special Servicer under this Agreement.
In addition, the Trustee shall make available to any Privileged
Person, via the Website, the Special Events Bulletin. The "Special Events
Bulletin" shall list all of the events for which the Trustee receives notice
from (A) with respect to the Special Events described in (i) through (x) below,
the Servicer (with respect to Loans that are not Specially Serviced Loans) or
the Special Servicer (with respect to Loans that are Specially Serviced Loans or
with respect to Special Events described in (vi) and (vii) below) or (B) with
respect to the Special Event described in (xi) below, the Depositor, that such
event occurred and constitutes a Special Event, together with the date such
Special Event has occurred. The following shall constitute "Special Events":
(i) any notice from a Borrower or insurance company, or any
knowledge otherwise obtained, regarding a prepayment, material casualty
(for purposes of this clause, any casualty resulting in damage in excess
of 5% of the Loan amount or value of the property shall be deemed to be
material) or condemnation or, upon completion of any defeasance,
defeasance of all or part of the related Loan (provided that a request by
a Borrower or other Person for a quotation of the amount necessary to
satisfy all obligations with respect to a Loan shall not, in and of
itself, be deemed to be such notice);
(ii) the status of capital improvement (i.e., work has commenced,
work is underway or work is completed) having a cost of $1,000,000 or more
required under the Loan Documents, including information on the balance of
the related reserves;
(iii) the results of any property inspection of which the
Servicer or Special Servicer has knowledge and which has revealed any
material damage or deterioration or the presence of any material
environmental condition with respect to any Mortgaged Property;
(iv) any notice from a Borrower, or any knowledge otherwise
obtained, regarding any judgment against such Borrower or involving any
Mortgaged Property which the Servicer deems to be a Servicing Transfer
Event or which the Special Servicer reasonably believes is likely to have
an adverse effect on such Mortgaged Property or the ability of such
Borrower to pay the amounts due under the related Loan;
(v) any notice received from a Borrower, Manager or tenant of a
Mortgaged Property, or any knowledge otherwise obtained, regarding the
material default of such tenant under the terms of its lease or early
termination by either any tenant that (A) leases more than 20% of the
gross leasable area and (B) other than with respect to Loans secured by
residential cooperative properties, the absence of such tenant would
result in a DSCR less than 1.25x or the Borrower of such lease, the
bankruptcy of such tenant or its direct or indirect parent, or the loss of
a license or permit of such tenant relating to any Mortgaged Property;
(vi) any amendment, modification or waiver of a material
provision of a Loan of which the Special Servicer has knowledge, provided
that the Special Servicer need not disclose the nature of any asset
strategy or proposed modifications in connection with a work-out or
resolution of a Specially Serviced Loan;
(vii) any change in the ownership of a Borrower or Mortgaged
Property or request for consent to an assumption of a Loan;
(viii) any material lien being recorded on a Mortgaged Property
if such recordation is a Servicing Transfer Event;
(ix) the results of any Appraisal or other valuation performed
with respect to a Mortgaged Property;
(x) such other information as the Servicer or Special Servicer
elects to present, such as information regarding leasing activities in the
market any anchor space (which, for such purposes, shall be space
comprising more than 15% of the gross leasable area), new developments,
net absorption and market vacancy rates, rents and expenses; and
(xi) any event designated as such by the Depositor.
The Trustee shall list the occurrence of any Special Event on the
Website promptly upon receipt of notice from the Servicer, Special Servicer or
the Depositor, as applicable, but no later than the next scheduled Distribution
Date.
The Trustee shall not be liable for the dissemination of information
in accordance with this Section 4.02(b). The Trustee makes no representations or
warranties as to the accuracy or completeness of any report, document,
questions, answer, special event, or other information made available on the
Website and assumes no responsibility therefor. In addition, the Trustee may
disclaim responsibility for any information distributed by the Trustee for which
it is not the original source.
In connection with providing access to the Website, the Trustee may
require registration and the acceptance of a disclaimer.
(c) The Trustee shall make available at its offices, during normal
business hours, upon not less than ten Business Days' prior written notice, for
review by any Certificateholder, any prospective investor in a Certificate, the
Depositor, the Servicer, the Special Servicer, any Rating Agency and any other
Person to whom the Depositor believes such disclosure is appropriate, originals
or copies of documents relating to the Loans and any related REO Properties to
the extent in its possession, including, without limitation, the following items
(except to the extent prohibited by applicable law or by the terms of any of the
Mortgage Documents): (i) this Agreement and any amendments thereto; (ii) all
Statements to Certificateholders delivered to the Certificateholders since the
Closing Date; (iii) all annual Officers' Certificates and all accountants'
reports delivered by the Servicer or Special Servicer to the Trustee since the
Closing Date regarding compliance with the relevant agreements; (iv) any and all
Officers' Certificates and other evidence delivered to or by the Trustee to
support the Servicer's or the Trustee's, as the case may be, determination that
any Advance, if made, would be a Nonrecoverable Advance; and (v) any other
materials not otherwise required to be provided to a requesting
Certificateholder pursuant to this Agreement, in situations where such
requesting Certificateholder declined to enter into a confidentiality agreement
with the Servicer. The Trustee shall make available at its offices, during
normal business hours, upon not less than ten Business Days' prior written
notice, for review by any Certificateholder, any prospective investor in a
Certificate, the Depositor, the Trustee, the Servicer, the Special Servicer, any
Rating Agency and any other Person to whom the Depositor believes such
disclosure is appropriate, originals or copies of any and all modifications,
waivers and amendments of the terms of a Loan entered into by the Servicer
and/or the Special Servicer and delivered to the Trustee. The Servicer shall
cooperate with the Trustee to make any of the above-mentioned items available to
any Certificateholder upon its request and payment by it of reasonable costs.
Copies of any and all of the foregoing items will be available from the Trustee
upon written request therefor. The Trustee will be permitted to require payment
by the requesting party (other than a Rating Agency) of a sum sufficient to
cover the reasonable costs and expenses of making such information available and
providing any copies thereof. The Trustee's obligation under this Section
4.02(c) to make available any document is subject to the Trustee's receipt of
such document.
(d) Notwithstanding the foregoing provisions of this Article 4.02,
the Trustee shall not be required to provide the full reporting provided for in
Sections 4.02(b) and (c) unless and until the Servicer provides its related
reporting to the Trustee in CMSA format.
(e) The Servicer and the Special Servicer shall not be required to
conduct research or obtain information that is not available to the Servicer or
the Special Servicer, respectively, in the ordinary course of its servicing
activities hereunder. In addition, the Servicer and the Special Servicer shall
not be required to (i) answer commercially unreasonable questions, (ii) answer
questions relating to matters that extend beyond the scope of its duties as
Servicer or Special Servicer, respectively, (iii) answer questions that would,
in the Servicer's or the Special Servicer's sole discretion, require the
Servicer or the Special Servicer to devote an unreasonable amount of time or
resources to answer, (iv) disclose information that would violate the terms of
any of the Loan Documents or initiate contact with Mortgagors or third parties
except in connection with the ordinary course of its servicing duties hereunder
or (v) express opinions or make recommendations under this Section 4.02(b) (it
being understood that the Servicer and the Special Servicer may limit their
responses to factual matters). The provision of information hereunder by the
Servicer and the Special Servicer shall be subject to Section 3.27(d) and
Section 3.27(f), as applicable.
Section 4.03 P&I Advances.
(a) On or before 3:00 p.m. New York City time on each P&I Advance
Date, the Servicer shall (i) deposit into the Lower-Tier Distribution Account
from its own funds an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date, (ii) apply amounts
held in the Collection Account that are not required to be part of the Available
Distribution Amount for such Distribution Date or (iii) make P&I Advances in the
form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made. Any amounts held in the Collection Account not required to
be a part of the Available Distribution Amount for such Distribution Date and so
used to make P&I Advances shall be appropriately reflected in the Servicer's
records and replaced by the Servicer by deposit in the Collection Account on or
before the next succeeding P&I Advance Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and/or interest in respect of which such P&I Advances were made). The
Servicer shall notify the Trustee by a certificate of the Servicing Officer of
(i) the aggregate amount of P&I Advances for a Distribution Date and (ii) the
amount of any Nonrecoverable P&I Advances for such Distribution Date, on or
before the Servicer Remittance Date. P&I Advances for the 1211 Avenue of the
Americas Loan shall be determined pursuant to the 1211 Avenue of the Americas
Servicing Agreement and shall be further governed by the 1211 Avenue of the
Americas Intercreditor Agreement.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Primary Servicing Fees, Servicing Fees and Workout Fees, if any), other
than Balloon Payments, that were due during any related Due Period and
delinquent as of the close of business on the Business Day preceding the related
P&I Advance Date (or not advanced by any Sub-Servicer on behalf of the
Servicer); and (ii) with respect to each Loan as to which the related Balloon
Payment was due during or prior to the related Due Period and was delinquent as
of the end of the related Due Period (including any REO Loan as to which the
Balloon Payment would have been past due), an amount equal to the Assumed
Scheduled Payment therefor. All P&I Advances for any Loans that have been
modified shall be calculated on the basis of their terms as modified. Subject to
subsection (c) below, the obligation of the Servicer to make such P&I Advances
is mandatory and, with respect to any Loan or REO Loan, shall continue until the
Distribution Date on which the proceeds, if any, received in connection with a
Liquidation Event with respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, neither the
Servicer nor the Trustee shall be required to make a P&I Advance, if the
Servicer or the Trustee determines, in accordance with the definition thereof,
that any such P&I Advance would be a Nonrecoverable Advance. The Trustee may
conclusively rely on any determination of nonrecoverability by the Servicer. The
Special Servicer shall not be required to make P&I Advances under this
Agreement. On the fourth Business Day before each Distribution Date, the Special
Servicer shall report to the Servicer the Special Servicer's determination as to
whether each P&I Advance made with respect to any previous Distribution Date or
required to be made with respect to such Distribution Date with respect to any
Specially Serviced Loan or REO Loan is a Nonrecoverable P&I Advance. The
Servicer shall be entitled to conclusively rely on (but shall not be bound by)
such determination.
(d) In connection with the recovery of any P&I Advance out of the
Collection Account pursuant to Section 3.05(a), the Servicer shall be entitled
to pay itself or the Trustee, as the case may be, out of any amounts then on
deposit in the Collection Account, interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of such P&I Advance from the date made
to but not including the date of reimbursement. The Servicer shall reimburse
itself or the Trustee, as the case may be, for any outstanding P&I Advance as
soon as practicably possible after funds available for such purpose are
deposited in the Collection Account. The Servicer shall prepare and make
available to Certificateholders, upon request, a report concerning Advances in
the form of Exhibit L hereto.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall be required or permitted to make an advance for Penalty Charges,
Prepayment Premiums, Yield Maintenance Charges, Balloon Payments or Excess
Interest, (ii) the amount required to be advanced in respect of delinquent
Monthly Payments and Assumed Scheduled Payments on any Loan that has been
subject to an Appraisal Reduction will equal, with respect to any Distribution
Date, the amount that would be required to be advanced by the Servicer without
giving effect to the Appraisal Reduction, less the Appraisal Reduction Amount,
for such Distribution Date, and (iii) if the monthly payment on any Loan has
been reduced or the final maturity extended, in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
and the monthly payment due and owing during the extension period is less than
the amount of the Monthly Payments prior to such modification, then the Servicer
shall, as to such Loan only, advance only the amount of the Monthly Payment due
and owing after taking into account such reduction (net of related Primary
Servicing Fees, Servicing Fees and Workout Fees), in the event of subsequent
delinquencies thereon. The 1211 Avenue of the Americas Servicer will make
advances as determined by the 1211 Avenue of the Americas Servicing Agreement.
Section 4.04 Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Trustee shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Loans and any REO Loans expected to be outstanding
immediately following such Distribution Date is less than (ii) the then
aggregate Certificate Balance of the Regular Certificates after giving effect to
distributions of principal on such Distribution Date and the allocation of
Certificate Deferred Interest pursuant to Section 4.06 (any such deficit, the
"Collateral Support Deficit"). Any allocation of Collateral Support Deficit to a
Class of Regular Certificates shall be made by reducing the Certificate Balance
thereof by the amount so allocated. Any Collateral Support Deficit allocated to
a Class of Regular Certificates shall be allocated among the respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. The allocation of Collateral Support Deficit shall constitute an
allocation of losses and other shortfalls experienced by the Trust Fund.
Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates in
respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution to the extent of any
Collateral Support Deficit, if any, allocable to such Certificates with respect
to such Distribution Date. Such reductions shall be allocated among the
respective Certificates as follows: first, to the Class N Certificates; second,
to the Class M Certificates; third, to the Class L Certificates; fourth, to the
Class K Certificates; fifth, to the Class J Certificates; sixth, to the Class H
Certificates, seventh, to the Class G Certificates, eighth, to the Class F
Certificates, ninth, to the Class E Certificates, tenth, to the Class D
Certificates, eleventh, to the Class C Certificates, and twelfth, to the Class B
Certificates, in each case, until the remaining Certificate Balance of each such
Class of Certificates has been reduced to zero. Following the reduction of the
Certificate Balances of all such Classes to zero, any remaining Collateral
Support Deficit shall be allocated among the Class A-1 and Class A-2
Certificates, pro rata (based upon the Certificate Balance of each such Class),
until the remaining Certificate Balances of such Classes have been reduced to
zero. Any Collateral Support Deficit allocated to a Class of Certificates will
be allocated among respective Certificates of such Class in proportion to the
Percentage Interests evidenced thereby.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amounts
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off.
Section 4.05 Appraisal Reductions.
The aggregate Appraisal Reductions will be allocated by the Trustee
on each Distribution Date to the Certificate Balance of the Class N, Class M,
Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C
and Class B Certificates, in that order, up to the amount of their respective
Certificate Balances, for purposes of determining the amount of P&I Advances
with respect to the related Loans. On any Distribution Date, an Appraisal
Reduction that otherwise would be allocated to a Class of Certificates shall be
allocated to the next most subordinate Class to the extent that the Certificate
Balance on such Distribution Date for such Class of Certificates (prior to
taking the Appraisal Reduction into account) is less than the Appraisal
Reduction for such Distribution Date.
Section 4.06 Certificate Deferred Interest.
(a) On each Distribution Date, the Monthly Interest Distribution
Amount for the Regular Certificates (other than the Class A-X Certificates)
shall be reduced by an amount of Certificate Deferred Interest equal to the
aggregate amount of Mortgage Deferred Interest for all Loans for the related Due
Date allocated to such Class of Certificates, the amount representing such
Certificate Deferred Interest to be allocated, to the Class N Certificates, to
the Class M Certificates, to the Class L Certificates, to the Class K
Certificates, to the Class J Certificates, to the Class H Certificates, to the
Class G Certificates, to the Class F Certificates, to the Class E Certificates,
to the Class D Certificates, to the Class C Certificates and to the Class B
Certificates, in that order. If the Certificate Balance of at least one Class of
Class A Certificates is not zero, then any amounts representing Certificate
Deferred Interest after allocation thereof to the Subordinate Certificates in
accordance with the preceding sentence will be allocated to the Class A
Certificates pro rata on the basis of the respective interest entitlements of
such Class on such date (before giving effect to any reduction therefrom on such
Distribution Date).
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M and Class N Certificates shall be increased
(except for the purposes of determining Voting Rights or the identity of the
Controlling Class) by the amount of the Certificate Deferred Interest allocated
to such Class of Certificates on such Distribution Date pursuant to Section
4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto. On each Distribution Date, to the extent provided in Section
4.06(b), Certificate Deferred Interest will be added to the Lower-Tier Principal
Amount of the Uncertificated Lower-Tier Interests in the same manner as the
interest thereon was reduced pursuant to the preceding sentence.
Section 4.07 Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account shall constitute,
and that the affairs of the Trust Fund (exclusive of the Upper-Tier REMIC and
the Lower-Tier REMIC) shall be conducted so as to qualify such portions as, a
"grantor trust" under the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall furnish or cause to be furnished to Class V-1 and Class V-2
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income relating to their share
of Excess Interest and, at the time or times and in the manner required by the
Code.
<PAGE>
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Private Certificates will be offered only to Qualified
Institutional Buyers. The Class A-X, Class E, Class F, Class G, Class H and
Class J Certificates will be offered only to Qualified Institutional Buyers and
Non-U.S. Persons. The Class N Certificates will be offered only to Qualified
Institutional Buyers and Institutional Accredited Investors. Interests in the
Class A-X, Class E, Class F, Class G, Class H and Class J Certificates will be
offered (i) in the form of beneficial interests in restricted global
certificates in definitive, fully registered form without interest coupons,
deposited with the Trustee, as custodian for DTC, and registered in the name of
Cede & Co. ("Cede") DTC's nominee or (ii) in fully registered, certificated
form. The Class K, Class L, Class M and Class N Certificates will be offered in
fully registered, certificated form.
Class A-X, Class E, Class F, Class G, Class H and Class J
Certificates sold in reliance on Regulation S under the Securities Act will be
represented by one or more Private Global Certificates (each, a "Regulation S
Global Certificate"). Beneficial interests in a Regulation S Global Certificate
may be held only through Euroclear or Clearstream at any time and may not be
held by a U.S. Person at any time.
(b) The Certificates shall be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-7. The Certificates shall
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in the Regular Certificates (other
than the Private Definitive Certificates) shall initially be held and
transferred through the book-entry facilities of the Depository. The Class V-1,
Class V-2, Class R and Class LR Certificates, and all Private Definitive
Certificates, shall be issuable as Definitive Certificates. Each Certificate
shall share ratably in all rights of the related Class.
The Class A-X Certificates shall be issuable only in Denominations
of authorized initial Notional Balance of not less than $100,000 and integral
multiples of $1 in excess thereof. The Class N Certificates shall be issuable
only in Denominations of authorized initial Certificate Balance of not less than
$100,000 and integral multiples of $1 in excess thereof. The Regular
Certificates (other than the Class A-X Certificates and Class N Certificates)
will be issuable only in Denominations of authorized initial Certificate Balance
of not less than $25,000 and integral multiples of $1 in excess thereof. The
Class V-1, Class V-2, Class R and Class LR Certificates will be issuable only as
one or more Definitive Certificates in Denominations representing Percentage
Interests of not less than 15%.
With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount set forth on the
face thereof or on a schedule attached thereto, (ii) in the case of any
beneficial interest in a Book-Entry Certificate, the interest of the related
Certificate Owner in the applicable Class of Certificates as reflected on the
books and records of the Depository or related Depository Participants, as
applicable, (iii) expressed in terms of initial Certificate Balance or initial
Notional Balance, as applicable, and (iii) in an authorized Denomination, as set
forth above. The Book-Entry Certificates will be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Certificate Owners will hold interests in the Book-Entry Certificates
through the book-entry facilities of the Depository in the minimum Denominations
and aggregate Denominations as set forth above.
The Holder of a Class A-X, Class E, Class F, Class G, Class H or
Class J Certificate represented by a Private Definitive Certificate shall be
entitled to exchange such Certificate for an interest in a Private Global
Certificate, in accordance with the procedures described in Section 5.03(g). A
Certificate Owner of a Private Global Certificate shall be entitled to receive a
Definitive Certificate representing its interest in such Certificate in
accordance with the procedures described in Section 5.03(c)(i). No Certificate
Owner of a Public Certificate of any Class shall be entitled to receive a
Definitive Certificate representing its interest in such Class, except as
provided in Section 5.03(c)(ii). Unless and until Definitive Certificates are
issued in respect of a Class of Public Certificates, or in substitution for a
Certificate that is a Private Global Certificate, beneficial ownership interests
in such Class of Certificates, or in such Private Global Certificate, shall be
maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates, or Holders of such Private Global Certificates, shall be
references to actions taken by the Depository upon instructions received from
the related registered Holders of Certificates through the Depository
Participants in accordance with the Depository's procedures and, except as
otherwise set forth herein, all references herein to payments, notices, reports
and statements to Holders of such Class of Certificates, or Holders of Private
Global Certificates, shall be references to payments, notices, reports and
statements to the Depository or its nominee as the registered Holder thereof,
for distribution to the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures.
(c) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. The Trustee is
hereby initially appointed Authenticating Agent with power to act on the
Trustee's behalf in the authentication and delivery of the Certificates in
connection with transfers and exchanges as herein provided. If the
Authenticating Agent resigns or is terminated, the Trustee shall appoint a
successor Authenticating Agent which may be the Trustee or an Affiliate thereof.
(d) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
(e) If the Trust Fund ceases to be subject to Section 13 or 15(d) of
the Exchange Act, the Trustee shall make available to each Holder of a Class R
or Class LR Certificate, upon request of such a Holder, information
substantially equivalent in scope to the information currently filed by the
Trustee with the Commission pursuant to the Exchange Act, plus such additional
information required to be provided for securities qualifying for resales under
Rule 144A under the Act.
For so long as the Class R or Class LR Certificates remain
outstanding, neither the Depositor nor the Trustee nor the Certificate Registrar
shall take any action which would cause the Trust Fund to fail to be subject to
Section 15(d) of the Exchange Act.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed Certificate Registrar for the purpose
of registering Certificates and transfers and exchanges of Certificates as
herein provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Trustee, the Special Servicer and the Servicer,
any other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment.
If Wells Fargo Bank Minnesota, N.A., resigns as Trustee, the entity
succeeding Wells Fargo Bank Minnesota, N.A., as Trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar. The Depositor, the
Trustee, the Servicer and the Special Servicer shall have the right to inspect
the Certificate Register or to obtain a copy thereof at all reasonable times,
and to rely conclusively upon a certificate of the Certificate Registrar as to
the information set forth in the Certificate Register. The names and addresses
of all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. In addition, upon the
request of the Depositor, the Servicer or the Special Servicer (and at such
requesting party's expense), the Trustee shall acquire from DTC (which request
may be made to the proxy unit of DTC's reorganization department) a Security
Position Listing and deliver a copy of such Security Position Listing to such
requesting party.
The Person in whose name any Certificate is so registered shall be
deemed and treated as the sole owner and Holder thereof for all purposes of this
Agreement and the Certificate Registrar, the Servicer, the Trustee, the Special
Servicer and any agent of any of them shall not be affected by any notice or
knowledge to the contrary. A Definitive Certificate is transferable or
exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at the Corporate Trust Office (the "Registrar Office") together with
an assignment and transfer (executed by the Holder or his duly authorized
attorney).
Subject to the requirements of Sections 5.02(b), (c) and (d), the
Certificate Registrar shall execute and authenticate in the name of the
designated transferee or transferees, in the case of a Definitive Certificate
being surrendered in exchange for one or more new Definitive Certificates, one
or more new Certificates in Denominations equal in the aggregate to the
Denomination of the Definitive Certificate being surrendered. Such new
Certificates shall be delivered by the Certificate Registrar in accordance with
Section 5.02(e).
Each Certificate surrendered for registration of transfer shall be
canceled, and the Certificate Registrar shall hold such canceled Certificate in
accordance with its standard procedures.
(b) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer (other than one by the Depositor to
an Affiliate thereof) of a Private Certificate is to be made in reliance upon an
exemption from the Securities Act, and under the applicable state securities
laws, then either:
(i) the Certificate Registrar shall require the transferee to
deliver to the Certificate Registrar an investment representation letter
substantially in the form of Exhibit C-1 attached hereto (a "QIB
Investment Representation Letter"), which shall certify, among other
things, that the transferee is a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act (a "Qualified Institutional
Buyer"); or
(ii) with respect to the Class A-X, Class E, Class F, Class G,
Class H and Class J Certificates only, the Certificate Registrar shall
require the transferee to deliver to the Certificate Registrar an
investment representation letter substantially in the form of Exhibit C-2
attached hereto (a "Regulation S Investment Representation Letter"), which
will certify, among other things, that the transferee is not a "U.S.
Person" within the meaning of Regulation S under the Securities Act; or
(iii) with respect to the Class N Certificates only, the
Certificate Registrar shall require the transferee to deliver to the
Certificate Registrar an investment representation letter substantially in
the form of Exhibit C-3 attached hereto, which shall certify, among other
things, that the transferee is an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (an
"Institutional Accredited Investor") and is acquiring such Private
Certificate for investment, either for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others
also are Accredited Investors), and not with a view to, or for offer or
sale in connection with, the public distribution thereof.
If the certification described in the preceding clause (i) cannot be
provided, (a) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from registration or qualification under the
Securities Act, applicable state securities laws and other relevant laws, which
Opinion of Counsel shall not be at the expense of the Trust Fund, the
Certificate Registrar, the Depositor or the Trustee and (b) the Certificate
Registrar shall require the transferor (other than the Underwriters, in
connection with its initial transfer of the Certificate being transferred) to
execute a certification in form and substance satisfactory to the Certificate
Registrar setting forth the facts surrounding such transfer; provided, however,
that a transfer of a Private Certificate of any such Class may be made to a
trust if the transferor provides to the Certificate Registrar and to the Trustee
a certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02.
Each Servicer shall furnish to the Trustee, which shall furnish, or
cause to be furnished, upon the request of any Holder of a Private Certificate,
any such information as is specified in paragraph (d)(4) of Rule 144A with
respect to the Trust Fund, unless, at the time of such request, the entity with
respect to which such information is to be provided is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act. None of the Depositor,
the Trustee, the Servicer or the Certificate Registrar is obligated to register
or qualify any Class of Private Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Private Certificate without registration
or qualification. Any Holder of a Private Certificate desiring to effect such a
transfer shall, and does hereby agree to, indemnify the Depositor, the Trustee,
the Servicer and the Certificate Registrar against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws. Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
Private Global Certificate that is not rated in one of the top four rating
categories by a nationally recognized statistical rating organization may be
effectuated only by means of an "SRO Rule 144A System" approved for such purpose
by the Commission.
No Class V-1 Certificate may be transferred to an Ineligible Class
V-1 Owner. No Class V-2 Certificate may be transferred to an Ineligible Class
V-2 Owner.
(c) (i) Unless a Class of Private Global Certificates has been
registered under the Securities Act, each Certificate of such Class shall bear a
legend substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO
A PERSON WHO IS NOT A "U.S. PERSON" AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT, (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH
OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER
REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT, AND
SUCH HOLDER SHALL, AND EACH SUBSEQUENT PURCHASER IS REQUIRED TO
NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND
SERVICING AGREEMENT AND SHALL ALSO BE REQUIRED TO DELIVER AN OPINION
OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A AND IT IS A U.S. PERSON WITHIN THE
MEANING OF RULE 902 UNDER REGULATION S.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A)
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL STATE OR
LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A COLLECTIVE
INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN,
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM SET
FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR (II)
IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR
(B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY
NOT BE TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH
AN ENTITY SUCH ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OR
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE
OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
SPECIAL SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR
LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED
PRIVATE CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF
ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY
SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA
SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR CHARACTERIZATION
UNDER ANY SIMILAR LAW.
(d) (i) Unless a Class of Private Definitive Certificates has been
registered under the Securities Act, each Certificate of such Class shall bear a
legend substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (C)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING
CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
[WITH RESPECT TO THE CLASS V-1 CERTIFICATES ONLY:] THE HOLDER OF
THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH CERTIFICATE TO ANY PERSON THAT IS AN
"INELIGIBLE CLASS V-1 OWNER" (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
[WITH RESPECT TO THE CLASS V-2 CERTIFICATES ONLY:] THE HOLDER OF
THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH CERTIFICATE TO ANY PERSON THAT IS AN
"INELIGIBLE CLASS V-2 OWNER" (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER
REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT, AND
SUCH HOLDER SHALL, AND EACH SUBSEQUENT PURCHASER IS REQUIRED TO
NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND
SERVICING AGREEMENT AND SHALL ALSO BE REQUIRED TO DELIVER AN OPINION
OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A)
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
AN INDIVIDUAL RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR FEDERAL STATE OR
LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A COLLECTIVE
INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH
INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR
ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING
ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN,
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT
HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (I) TO DELIVER A LETTER IN THE FORM SET
FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR (II)
IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR
(B) ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY
NOT BE TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH
AN ENTITY SUCH ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OR
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
ERISA OR THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE
OR SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA OR
SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE SERVICER, THE
SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY. THE TRANSFEREE OF A BENEFICIAL INTEREST IN
AN OFFERED PRIVATE CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT
IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR USING THE
ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE
BY SUCH INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION 406 OR 407 OF
ERISA SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW.
(e) With respect to any Certificate other than a Class A Certificate
or a Class A-X Certificate, no sale, transfer, pledge or other disposition by
any Holder of any such Certificate shall be made unless the Certificate
Registrar shall have received either (i) a representation letter from the
proposed purchaser or transferee of such Certificate to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or Section 4975 of the Code, or
a governmental plan (as defined in Section 3(32) of ERISA) subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than (except in the case of a Class R or Class LR
Certificate) an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be eligible for the exemptive relief from the prohibited
transaction provisions of ERISA and Section 4975 of the Code that is available
under Sections I and III of Prohibited Transaction Class Exemption 95-60 (it
being understood that delivery of a representation letter containing a
representation substantially in the form of paragraph 8 of Exhibit C attached
hereto shall satisfy the requirement of this Section 5.02(d)(i)), or (ii) if
such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Trustee, the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
prohibited transaction under ERISA, Section 4975 of the Code or any Similar Law
and will not subject the Trustee, the Certificate Registrar, the Servicer, the
Special Servicer, the Underwriters, the Initial Purchaser or the Depositor to
any obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any Similar Law) in addition to those set forth in
the Agreement.
The Certificate Registrar shall not register the sale, transfer,
pledge or other disposition of any such Certificate unless the Certificate
Registrar has received either the representation letter described in clause (i)
above or the Opinion of Counsel described in clause (ii) above. The costs of any
of the foregoing representation letters or Opinions of Counsel shall not be
borne by any of the Depositor, the Servicer, the Special Servicer, the
Certificate Registrar, the Trustee and the Trust Fund. Each Certificate Owner of
a Certificate other than a Class A or Class A-X Certificate shall be deemed to
represent that it is not a Person specified in clauses (a), or (b) above. Any
transfer, sale, pledge or other disposition of any such Certificates that would
constitute or result in a prohibited transaction under ERISA, Section 4975 of
the Code or any Similar Law, or would otherwise violate the provisions of this
Section 5.02(c) shall be deemed absolutely null and void ab initio, to the
extent permitted under applicable law.
So long as any Class of Certificates other than the Class A and
Class A-X Certificates remains outstanding, the Servicer will make available, or
cause to be made available, upon written request with sufficient notice during
normal business hours, to any Holder and any Person to whom any such Certificate
of any such Class of Certificates may be offered or sold, transferred, pledged
or otherwise disposed of by such Holder, information with respect to the
Servicer, the Special Servicer or the Loans reasonably necessary to the
provision of an Opinion of Counsel described in this Section 5.02(c).
(f) Notwithstanding any provision to the contrary herein, so long as
a Private Global Certificate remains outstanding and is held by or on behalf of
DTC, transfers of a Private Global Certificate, in whole or in part, shall only
be made in accordance with this Article V.
(i) Regulation S Global Certificate to Rule 144A Global
Certificate. If a holder of a beneficial interest in a Regulation S Global
Certificate deposited with DTC wishes at any time to transfer its interest
in such Regulation S Global Certificate to a Person who wishes to take
delivery thereof in the form of a Rule 144A Global Certificate, such
holder may, subject to the rules and procedures of Euroclear, Clearstream
or DTC, as the case may be, exchange or cause the exchange of such
interest for an equivalent beneficial interest in a Rule 144A Global
Certificate. Upon receipt by the Trustee, as custodian for DTC, of (A)
instructions from Euroclear, Clearstream or DTC, as the case may be,
directing the Trustee, as such custodian, to cause to be issued a Rule
144A Global Certificate in an amount equal to the beneficial interest in
such Regulation S Global Certificate, but not less than the minimum
denomination applicable to such holder's Certificates to be exchanged, and
(B) a certificate in the form of Exhibit C-1 attached hereto given by the
holder of such beneficial interest and stating, among other things, that
the Person transferring such beneficial interest in such Regulation S
Global Certificate reasonably believes that the Person acquiring such
interest in a Rule 144A Global Certificate is a qualified institutional
buyer within the meaning of Rule 144A, is obtaining such beneficial
interest in a transaction meeting the requirements of Rule 144A and in
accordance with any applicable Securities laws of any State of the United
States or any other applicable jurisdiction and that such Person acquiring
such Rule 144A Global Certificate is a "U.S. person" as defined in
Regulation S under the Securities Act, then Euroclear or Clearstream or
the Trustee, as custodian for DTC, as the case may be, will instruct the
Trustee, as custodian for DTC, to reduce the Regulation S Global
Certificate by the aggregate principal amount of the Rule 144A Global
Certificate to be transferred and the Trustee, as such custodian, shall
authenticate and deliver such Rule 144A Global Certificate, concurrently
with such reduction, to the Person specified in such instructions with an
outstanding principal amount equal to the reduction in the principal
amount of the Regulation S Global Certificate.
(ii) Rule 144A Global Certificate to Regulation S Global
Certificate. If a holder of a beneficial interest in one or more Rule 144A
Global Certificates wishes at any time to exchange its interest in such
Rule 144A Global Certificate for an interest in a Regulation S Global
Certificate, or to transfer its interest in such Rule 144A Global
Certificate to a Person who wishes to take delivery thereof in the form of
an interest in a Regulation S Global Certificate, such holder, provided
such holder is not a U.S. Person, may exchange or cause the exchange of
such interest for an equivalent beneficial interest in a Regulation S
Global Certificate. Upon receipt by the Trustee, as custodian for DTC, of
(A) such Rule 144A Global Certificate properly endorsed for such transfer
and written instructions from such holder directing the Trustee, as such
custodian, to cause to be credited a beneficial interest in a Regulation S
Global Certificate in an amount equal to the beneficial interest in the
Rule 144A Global Certificate, but not less than the minimum denomination
applicable to such holder's Certificates held through a Regulation S
Global Certificate, to be exchanged, (B) a written order containing
information regarding the Euroclear or Clearstream account to be credited
with such increase and (C) a certificate in the form of Exhibit C-2
attached hereto given by the holder of such beneficial interest stating
that the exchange or transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Private Global
Certificates, including that the holder is not a U.S. Person, and pursuant
to and in accordance with Regulation S under the Securities Act, the
Trustee, as custodian for DTC, shall record the transfer in the Registrar
Office and shall increase the principal amount of the Regulation S Global
Certificate by the outstanding principal amount of the beneficial interest
in the Rule 144A Global Certificate to be exchanged, and to credit, or
cause to be credited to the account of the Person specified in such
instructions, a beneficial interest in the Regulation S Global Certificate
equal to the amount specified in the instructions received pursuant to
clause (i) above.
(g) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) No Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Disqualified Organization or agent
thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan (such Plan or Person, an "ERISA Prohibited Holder")
or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is not a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person, and that it has reviewed the provisions
of this Section 5.02(g) and agrees to be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if a Responsible Officer
of the Certificate Registrar has actual knowledge that the proposed
Transferee is a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee shall
be effected;
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that (if the Transferor is not a U.S. Person)
such transfer does not have the effect of allowing the Transferor to
avoid tax on accrued excess inclusions; and
(E) In addition, the Certificate Registrar may as a condition
of the registration of any such transfer require the transferor to
furnish such other certifications, legal opinions or other
information (at the transferor's expense) as it may reasonably
require to confirm that the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and other applicable
laws.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(g), then the last preceding Holder of such Residual Certificate that
was in compliance with the provisions of this Section 5.02(g) shall be
restored, to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Servicer, the Authenticating Agent
and the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement.
(iii) The Servicer shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon written
request of the Trustee, all information in its possession and necessary to
compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization or Agent thereof, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
respect to the "excess inclusions" of such Residual Certificate.
(h) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange.
Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five Business Days of such request if made at such
Registrar Office, or within 10 Business Days if made at the office of a transfer
agent (other than the Certificate Registrar), execute and deliver at such
Registrar Office or at the office of such transfer agent, as the case may be, to
the transferee (in the case of transfer) or Holder (in the case of exchange) or
send by first-class mail (at the risk of the transferee in the case of transfer
or Holder in the case of exchange) to such address as the transferee or Holder,
as applicable, may request in writing, a Definitive Certificate or Certificates,
as the case may require, for a like aggregate Denomination and in such
Denomination or Denominations as may be requested. The Certificate Registrar may
decline to accept any request for an exchange or registration of transfer of any
Certificate during the period of 15 days preceding any Distribution Date.
(i) If a Responsible Officer of the Certificate Registrar becomes
aware that a beneficial interest in a Private Global Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that a
Private Definitive Certificate is being held by or for the benefit of a Person
who is not an Eligible Investor or an Institutional Accredited Investor, or
that, in either case, such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right, but not the
obligation, to void such transfer, if permitted under applicable law, or to
require the investor to sell (x) such Private Global Certificate to an Eligible
Investor or (y) the beneficial interest in such Private Definitive Certificate
to an Eligible Investor or an Institutional Accredited Investor, within 14 days
after notice of such determination, and each Certificateholder by its acceptance
of a Certificate authorizes the Certificate Registrar to take such action.
(j) The Certificate Registrar shall provide notice to the Trustee,
the Servicer, the Special Servicer and the Depositor of the transfer of any
Private Definitive Certificate. The Certificate Owner of a Private Definitive
Certificate that wishes to receive the information described in Section 3.28(c)
shall provide notice to the Trustee, the Servicer, the Special Servicer and the
Depositor of the transfer of any beneficial ownership in such Private Definitive
Certificate and of the address to which such information should be sent. Upon
the written request of the Trustee, the Servicer, the Special Servicer or the
Depositor, the Certificate Registrar shall provide each such Person with an
updated copy of the Certificate Register at the expense of the requesting party.
(k) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
(l) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Regular Certificates (except, the Class K, Class L, Class M
and Class N Certificates) initially shall be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as provided
in subsection (c) below, transfer of such Certificates may not be registered by
the Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, in the case of the Public
Certificates (except as provided in subsection (c)(i) below), shall not be
entitled to Definitive Certificates in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent only in accordance with the
Depository's normal procedures. Neither the Trustee nor the Certificate
Registrar shall have any responsibility to monitor or restrict the transfer of
any ownership interest in a Book-Entry Certificate transferable through the
book-entry facilities of the Depository.
(b) The Trustee, the Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) (i) Upon the request of any Certificate Owner of Private Global
Certificates, or the transferee of such Certificate Owner, that its interest in
such Private Global Certificates be exchanged for Private Definitive
Certificates, such Certificate Owner or transferee, upon presentation of
appropriate documentation to the Trustee as required by this Article V and
subject to the rules and procedures of the Depositary, shall be entitled to be
issued one or more Private Definitive Certificates in denominations authorized
pursuant to Section 5.01(b) equal in the aggregate to the Denomination of such
interest in such Private Global Certificates.
(d) If (A)(1) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (2) the Depositor is unable to locate a qualified successor, or
(B) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository with respect to some or all of the Classes, or (C) the Trustee
determines that Definitive Certificates are required in accordance with the
provisions of Section 5.03(e), the Trustee shall notify the affected Certificate
Owners, through the Depository with respect to all Classes, any Class or any
portion of any Class of the Certificates, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners
requesting the same.
(i) Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository
for registration of transfer, the Certificate Registrar shall execute,
authenticate and deliver, within five Business Days of such request if
made at the Registrar Office, or within ten Business Days if made at the
office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Servicer, the Trustee, the
Special Servicer and the Certificate Registrar shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for purposes of evidencing ownership of any Class
of Certificates, the registered Holders of such Definitive Certificates
shall be recognized as Certificateholders hereunder and, accordingly,
shall be entitled directly to receive payments on, to exercise Voting
Rights with respect to, and to transfer and exchange such Definitive
Certificates.
For purposes of any provision of this Pooling and Servicing
Agreement requiring or permitting actions with the consent of, or at the
direction of, Holders of Certificates evidencing a specified percentage of the
Voting Rights, such consent or direction may be given by a combination of
Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates, and Certificateholders owning
Definitive Certificates, evidencing in the aggregate such specified percentage
of the Voting Rights.
(e) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(f) If the Trustee has instituted or has been directed to institute
any judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of all or any portion of the Certificates
evidenced by Book-Entry Certificates, the Trustee may in its sole discretion
determine that such Certificates shall no longer be represented by such
Book-Entry Certificates. In such event, the Certificate Registrar will execute,
authenticate and deliver, in exchange for such Book-Entry Certificates,
Definitive Certificates in a Denomination equal to the aggregate Denomination of
such Book-Entry Certificates to the party so requesting such Definitive
Certificates. In such event, the Trustee shall notify the affected Certificate
Owners and make appropriate arrangements for the effectuation of the purpose of
this clause.
(g) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(h) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(h).
Upon receipt by the Certificate Registrar at the Registrar Office of (i) the
Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (ii) written instructions given in accordance with
Depository Rules directing the Certificate Registrar to credit or cause to be
credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interests (iv) if the affected Certificate is a Private
Certificate, a QIB Investment Representation Letter (or, if the affected
Certificate is a Class G or Class H Certificate, a Regulation S Investment
Representation Letter), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar shall instruct the Depository or the custodian holding
such Book-Entry Certificate on behalf of the Depository to increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions a
corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute
and authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Trustee and the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01 and for all
other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder," and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Certificate Registrar and any agent of any of
them shall be affected by notice to the contrary except as provided in Section
5.02(d).
Section 5.06 Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder, the Special Servicer or the Servicer
(for purposes of this Section 5.05, an "Applicant") applies in writing to the
Certificate Registrar, and such application states that the Applicant desires to
communicate with other Certificateholders, the Certificate Registrar shall
furnish or cause to be furnished to such Applicant a list of the names and
addresses of the Certificateholders as of the most recent Record Date, at the
expense of the Applicant, in the case of any Certificateholder and the expense
of the Trust Fund in the case of the Servicer or the Special Servicer.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee and the Certificate Registrar that the
Trustee and the Certificate Registrar shall not be held accountable in any way
by reason of the disclosure of any information as to the names and addresses of
the Certificateholders hereunder, regardless of the source from which such
information was derived.
(c) From time to time, upon the request of and at no expense to the
Trustee, the Certificate Registrar shall deliver to the Trustee the list of
Certificateholders and their addresses as currently reflected in the Certificate
Register.
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, each Servicer
and each Special Servicer each will keep in full effect its existence, rights
and franchises under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation or limited partnership in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Loans and to
perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets to any Person (other than the
Trustee), in which case any Person resulting from any merger or consolidation to
which the Depositor, the Servicer or the Special Servicer shall be a party, or
any Person succeeding to the business of the Depositor, the Servicer or the
Special Servicer, shall be the successor of the Depositor, the Servicer and the
Special Servicer, as the case may be, hereunder, without the execution or filing
of any paper (other than an assumption agreement wherein the successor shall
agree to perform the obligations of and serve as the Depositor, the Servicer or
the Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not or has not resulted in a withdrawal,
downgrading or qualification of the then-current ratings of the Classes of
Certificates that have been so rated (as evidenced by a letter to such effect
from each Rating Agency).
Section 6.03 Limitation on Liability of the Trustee, the Depositor,
the Servicer, the Special Servicer and Others.
(a) None of the Depositor, the Trustee, the Servicer, the Special
Servicer nor any of the Affiliates, directors, partners, members, managers,
shareholders, officers, employees or agents of any of them shall be under any
liability to the Trust Fund, the Underwriters, the parties hereto or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Trustee, the Servicer or the Special Servicer against any breach of warranties
or representations made herein or any liability which would otherwise be imposed
by reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of obligations and duties hereunder.
The Depositor, the Servicer, the Special Servicer, the Trustee and any director,
officer, employee or agent of the Depositor, the Trustee, the Servicer or the
Special Servicer may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder.
The Depositor, the Servicer, the Special Servicer, the Trustee and
any Affiliate, director, shareholder, member, partner, manager, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust Fund against any loss, liability or expense incurred in connection
with or relating to this Agreement, the Loans or the Certificates, other than
any loss, liability or expense: (i) specifically required to be borne thereby
pursuant to the terms hereof; (ii) incurred in connection with any breach of a
representation, warranty or covenant made by it herein; (iii) incurred by reason
of bad faith, willful misconduct or negligence in the performance of its
obligations or duties hereunder, or by reason of negligent disregard of such
obligations or duties or (iv) in the case of the Depositor and any of its
directors, officers, employees and agents, incurred in connection with any
violation by any of them of any state or federal securities law.
(b) None of the Depositor, the Trustee, the Servicer or the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability which it is not reasonably
assured of reimbursement thereof by the Trust; provided, however, that the
Depositor, the Servicer, the Special Servicer or the Trustee may in its
discretion undertake any such action, proceeding, hearing or examination that it
may deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action,
proceeding, hearing or examination and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Servicer, the Special Servicer and the Trustee shall be entitled to be
reimbursed therefor out of amounts attributable to the Loans on deposit in the
Collection Account as provided by Section 3.05(a).
(c) Each of the Pool I Servicer, the Pool II Servicer, the Pool I
Special Servicer and the Pool II Special Servicer agrees to indemnify the
Depositor and the Trust Fund and each other and any Affiliate, director,
officer, employee or agent thereof, and hold them harmless, from and against any
and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related out-of-pocket costs, judgments, and any other out-of-pocket costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of any willful misfeasance, bad faith or negligence of the Pool I
Servicer, the Pool II Servicer, the Pool I Special Servicer or the Pool II
Special Servicer, as the case may be, in the performance of its obligations and
duties under this Agreement or by reason of negligent disregard by the Pool I
Servicer, the Pool II Servicer, the Pool I Special Servicer or the Pool II
Special Servicer, as the case may be, of its duties and obligations hereunder or
by reason of breach of any representations or warranties made herein. The Pool I
Servicer, the Pool II Servicer, the Pool I Special Servicer and the Pool II
Special Servicer may consult with counsel, and any written advice or Opinion of
Counsel shall be full and complete authorization and protection with respect to
any action taken or suffered or omitted by it hereunder in good faith in
accordance with the Servicing Standard and in accordance with such advice or
Opinion of Counsel relating to (i) tax matters, (ii) any amendment of this
Agreement under Article X, (iii) the defeasance of any Defeasance Loan or (iv)
any matter involving legal proceeding with a Borrower.
The Depositor shall immediately notify the Pool I Servicer, the Pool
II Servicer, the Pool I Special Servicer or the Pool II Special Servicer, as
applicable, if a claim is made by a third party with respect to this Agreement
or the Loans entitling it to indemnification hereunder, whereupon the Pool I
Servicer, the Pool II Servicer, the Pool I Special Servicer or Pool II Special
Servicer, as the case may be, shall assume the defense of such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Pool I Servicer, the
Pool II Servicer, the Pool I Special Servicer or Pool II Special Servicer, as
the case may be, shall not affect any rights any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless the Pool I
Servicer's, the Pool II Servicer's, the Pool I Special Servicer's or Pool II
Special Servicer's, as the case may be, defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the Pool I
Servicer, the Pool II Servicer, the Pool I Special Servicer and the Pool II
Special Servicer.
The Depositor agrees to indemnify the Pool I Servicer, the Pool II
Servicer, the Pool I Special Servicer and the Pool II Special Servicer and any
Affiliate, director, officer, employee or agent thereof, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may sustain
arising from or as a result of any breach of representations and warranties or
failure in the performance of the Depositor's obligations and duties under this
Agreement. The Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer and the Pool II Special Servicer shall immediately notify the Depositor
if a claim is made by a third party with respect to this Agreement or the Loans
entitling it to indemnification hereunder, whereupon the Depositor shall assume
the defense of such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement.
(d) Any director, officer, employee, agent of the Pool I Servicer,
the Pool II Servicer, the Pool I Special Servicer, Pool II Special Servicer or
any of their Affiliates shall not be personally liable for any error of judgment
made in good faith by any officer, unless it shall be proved that the Pool I
Servicer, the Pool II Servicer, the Pool I Special Servicer, Pool II Special
Servicer or such officer was negligent in ascertaining the pertinent facts. No
director, officer, employee or agent of the Pool I Servicer, the Pool II
Servicer, Pool I Special Servicer, Pool II Special Servicer or any of their
Affiliates shall be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor,
the Servicer and the Special Servicer shall resign from their respective
obligations and duties hereby imposed on each of them except upon (a) a
determination that such party's duties hereunder are no longer permissible under
applicable law or (b) in the case of the Servicer or Special Servicer, upon the
appointment of, and the acceptance of such appointment by, a successor Servicer
or Special Servicer, as applicable and receipt by the Trustee of written
confirmation from each applicable Rating Agency that such resignation and
appointment will not cause such Rating Agency to downgrade, withdraw or qualify
any of then-current ratings assigned by such Rating Agency to any Class of
Certificates. Any such determination permitting the resignation of the
Depositor, the Servicer or the Special Servicer pursuant to above clause (a)
above shall be evidenced by an Opinion of Counsel (the cost of which, together
with any other expenses of such resignation, shall be at the expense of the
resigning party) to such effect delivered to the Trustee. No such resignation by
the Servicer or the Special Servicer shall become effective until the Trustee or
a successor Servicer shall have assumed the Servicer's or Special Servicer's, as
applicable, responsibilities and obligations in accordance with Section 7.02.
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
<PAGE>
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to make (x) any remittance
(including a P&I Advance) required to be made by the Servicer to the
Collection Account, Servicing Accounts, Excess Interest Distribution
Account, Interest Reserve Account or either Distribution Account by 2:00
p.m. New York City time on the Servicer Remittance Date, which is not
cured by 10:00 a.m. New York City time on the related Distribution Date or
(y) any Servicing Advance when required to be made pursuant to this
Agreement, which failure to make a Servicing Advance remains uncured for a
period of three Business Days (unless such Servicing Advance is required
to prevent the lapse of an Insurance Policy or a tax foreclosure in which
case there shall be no cure period); or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Servicer for deposit into, or the Servicer to make a required
deposit into the Collection Account or the REO Account, or to deposit
into, or to remit to the Trustee for deposit into, the Lower-Tier
Distribution Account any amount required to be so deposited or remitted by
the Servicer or the Special Servicer, as the case may be, pursuant to the
terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a
period of 30 days (15 days in the case of a failure to pay the premium for
any Insurance Policy required to be maintained hereunder) after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer or the Special Servicer,
as the case may be, by any other party hereto, or to the Servicer, the
Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, that with
respect to any such failure which is not curable within such 30-day period
or 15-day period, as applicable, the Servicer or the Special Servicer, as
the case may be, shall have an additional cure period of 30 days to effect
such cure so long as the Servicer or the Special Servicer, as the case may
be, has commenced to cure such failure within such initial 30-day period
or 15-day period, as applicable, and has diligently pursued, and is
continuing to pursue, a full cure; or
(iv) any breach on the part of the Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Servicer or the Special Servicer, as the case may be, by the Depositor or
the Trustee, or to the Servicer, the Special Servicer, the Depositor and
the Trustee by the Holders of Certificates of any Class evidencing, as to
such Class, Percentage Interests aggregating not less than 25%; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee shall have received and forwarded to the
Servicer and the Special Servicer, as applicable, written notice from
Fitch that the continuation of the Servicer or Special Servicer in such
capacity, has resulted, or would result, in and of itself, in a downgrade,
qualification or withdrawal of any rating then-assigned to any Class of
Certificates by such Rating Agency if the Servicer or Special Servicer, as
the case may be, is not replaced, and the Trustee shall not have received
subsequent notice from such Rating Agency (within 30 days) indicating that
no such downgrade, qualification or withdrawal will result (or that, if it
has resulted, it will be rescinded);
(ix) Fitch confirms in writing that the Servicer or Special
Servicer is no longer rated "CMS3" and "CSS3," respectively, or better as
such ratings pertain to both Servicer and Special Servicer; or
(x)S&P confirms in writing that the Pool I Servicer or Pool I
Special Servicer is no longer considered "approved" by S&P; provided that
with respect to clauses (ix) and (x), there will be a 60 day cure period.
(b) If any Event of Default with respect to the Pool I Servicer, the
Pool II Servicer, the Pool I Special Servicer or Pool II Special Servicer (in
either case, for purposes of this Section 7.01(b), the "Defaulting Party") shall
occur and be continuing, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, and at the
written direction of the Holders of Certificates entitled to at least 51% of the
Voting Rights and with respect to an Event of Default pursuant to Section
7.01(a)(viii), shall, terminate, by notice in writing to the Defaulting Party (a
"Termination Notice"), with a copy of such notice to the Depositor and the
Certificate Registrar, all of the rights and obligations of the Defaulting Party
under this Agreement and in and to the Loans and the proceeds thereof; provided,
however, that the Defaulting Party shall be entitled to the payment of accrued
and unpaid compensation and reimbursement through the date of such termination
as provided for under this Agreement for services rendered and expenses
incurred.
From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the Trustee
is hereby authorized and empowered to execute and deliver, on behalf of and at
the expense of the Defaulting Party, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Loans and related documents, or otherwise.
The Pool I Servicer, the Pool II Servicer, Pool I Special Servicer
and Pool II Special Servicer each agree that if it is terminated pursuant to
this Section 7.01(b), it shall promptly (and in any event no later than 20
Business Days after its receipt of the notice of termination) provide the
Trustee with all documents and records requested by it to enable the Trustee to
assume the Pool I Servicer's, the Pool II Servicer's, the Pool I Special
Servicer's or the Pool II Special Servicer's, as the case may be, functions
hereunder, and shall cooperate with the Trustee in effecting the termination of
the Pool I Servicer's, the Pool II Servicer's, the Pool I Special Servicer's or
the Pool II Special Servicer's, as the case may be, responsibilities and rights
hereunder, including, without limitation, the transfer within five Business Days
to the Trustee for administration by it of all cash amounts which shall at the
time be or should have been credited by the Pool I Servicer and Pool II Servicer
to the Collection Account, or any Servicing Account (if it is the Defaulting
Party) or by the Special Servicer to the REO Account (if it is the Defaulting
Party) or thereafter be received with respect to the Loans or any REO Property
(provided, however, that the Pool I Servicer, the Pool II Servicer, the Pool I
Special Servicer and Pool II Special Servicer each shall, if terminated pursuant
to this Section 7.01(b), continue to be entitled to receive all amounts accrued
or owing to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances (in the case of the Servicer) or otherwise, and
it and its directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such termination).
(c) The Holder or Holders of more than 50% of the aggregate
Certificate Balance of the Controlling Class shall be entitled to terminate the
rights and obligations of the Pool I Special Servicer under this Agreement, with
or without cause, and the rights and obligations of the Pool II Special Servicer
under this Agreement, during the continuance of an Event of Default hereunder,
upon 10 Business Days notice to the Pool I Special Servicer, Pool II Special
Servicer, the Pool I Servicer and the Pool II Servicer and the Trustee, and to
appoint a successor Special Servicer; provided, however, that (i) such successor
will meet the requirements set forth in Section 7.02 and (ii) as evidenced in
writing by each of the Rating Agencies, the proposed successor of such Special
Servicer will not, in and of itself, result in a downgrading, withdrawal or
qualification of the then-current ratings provided by the Rating Agencies in
respect to any Class of then outstanding Certificates that is rated. No penalty
or fee shall be payable to the Special Servicer with respect to any termination
pursuant to this Section 7.01(c). Notwithstanding the foregoing, at any time
when Lennar Partners, Inc., or an affiliate thereof, is the Directing
Certificateholder, Lennar Partners, Inc. or an affiliate may remove National
Consumer Cooperative Bank as Pool II Special Servicer with or without cause. Any
expenses of the trust as a result of any termination pursuant to this Section
7.01(c) shall be paid by the Holders who effected such termination.
(d) The Pool I Servicer, the Pool II Servicer, Pool I Special
Servicer and Pool II Special Servicer shall, from time to time, take all such
actions as are required by them in order to maintain their respective status as
an approved servicer and special servicer, as applicable and as pertains to this
transaction, with each of the Rating Agencies.
(e) If the Pool II Special Servicer fails to maintain its status as
an approved special servicer, the Pool I Special Servicer shall be required to
act as successor Pool II Special Servicer, subject to all terms and conditions
of this Agreement.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the
case may be, either resigns pursuant to the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and
provided that no acceptable successor has been appointed and subject to Section
7.01(e), the Trustee shall be and become the successor to the Servicer or
Special Servicer, as the case may be, in all respects in its capacity as
Servicer or Special Servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties,
liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of the Servicer or Special Servicer by
the terms and provisions hereof; provided, however, that any failure to perform
such duties or responsibilities caused by the terminated party's failure under
Section 7.01 to provide information or moneys required hereunder shall not be
considered a default by such successor hereunder.
The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen prior to its
termination as Servicer, and the appointment of a successor Special Servicer
shall not affect any liability of the predecessor Special Servicer which may
have arisen prior to its termination as Special Servicer. The Trustee in its
capacity as successor to the Servicer or the Special Servicer, as the case may
be, shall not be liable for any of the representations and warranties of the
Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Servicer or
Special Servicer or for any losses incurred by the Servicer pursuant to Section
3.06 hereunder, nor shall the Trustee be required to purchase any Loan
hereunder.
As compensation therefor, the Trustee as successor Servicer shall be
entitled to the Servicing Fees and all fees relating to the Loans which the
Servicer would have been entitled to if the Servicer had continued to act
hereunder (other than the Assignable Primary Servicing Fee), including but not
limited to any income or other benefit from any Permitted Investment pursuant to
Section 3.06, and as successor to the Special Servicer shall be entitled to the
Special Servicing Fees to which the Special Servicer would have been entitled if
the Special Servicer had continued to act hereunder. Should the Trustee succeed
to the capacity of the Servicer or the Special Servicer, the Trustee shall be
afforded the same standard of care and liability as the Servicer or the Special
Servicer, as applicable, hereunder notwithstanding anything in Section 8.01 to
the contrary, but only with respect to actions taken by it in its role as
successor Servicer or successor Special Servicer, as the case may be, and not
with respect to its role as Trustee hereunder. The Trustee shall not be entitled
to receive the Assignable Primary Servicing Fees.
Notwithstanding the above and subject to Section 7.01(e), the
Trustee may, if it shall be unwilling to act as successor to the Servicer or
Special Servicer, or shall, if it is unable to so act, or if the Trustee is not
approved as a servicer or special servicer, as applicable, by each Rating
Agency, or if the Holders of Certificates entitled to at least 51% of the Voting
Rights so request in writing to the Trustee, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution which meets the criteria set forth herein, as the
successor to the Servicer or the Special Servicer, as applicable, hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer or Special Servicer hereunder. No appointment of a successor to
the Servicer or the Special Servicer under this Section 7.02 shall be effective
(i) until each of the Rating Agencies shall have confirmed in writing that its
then-current rating (if any) of each Class of Certificates will not be qualified
(as applicable), downgraded or withdrawn by reason thereof and (ii) until the
assumption in writing by the successor to the Servicer or the Special Servicer
of all its responsibilities, duties and liabilities hereunder that arise
thereafter. Pending appointment of a successor to the Servicer or the Special
Servicer hereunder, unless the Trustee shall be prohibited by law from so
acting, the Trustee shall act in such capacity as herein above provided.
In connection with such appointment and assumption of a successor to
the Servicer or Special Servicer as described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Loans as
it and such successor shall agree; provided, however, that no such compensation
with respect to a successor Servicer or successor Special Servicer, as the case
may be, shall be in excess of that permitted the terminated Servicer or Special
Servicer, as the case may be, hereunder and, in the case of a successor
appointed pursuant to the provision of Section 7.01(e), such compensation shall
not be less than that paid to the terminated Servicer, in each case excluding
the Assignable Primary Servicing Fee; provided, further, that if no successor
can be obtained for such compensation, then, subject to approval by the Rating
Agencies, additional amounts shall be paid to such successor and such amounts in
excess of that permitted the terminated Servicer or Special Servicer, as the
case may be, shall be treated as Collateral Support Deficit. The Trustee, the
Servicer or the Special Servicer (whichever is not the terminated party) and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Any costs and expenses
associated with the transfer of the servicing function (other than with respect
to a termination without cause) under this Agreement shall be borne by the
predecessor Servicer or Special Servicer.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee would be deemed
to have notice of the occurrence of such an event in accordance with Section
8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3% (or 100%
in the case of an Event of Default pursuant to Section 7.01(a)(viii)) of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the receipt
of notice from the Trustee of the occurrence of such Event of Default; provided,
however, that an Event of Default under clause (i) of Section 7.01(a) may not be
waived. Upon any such waiver of an Event of Default and reimbursement by the
Servicer to the Trustee of all costs and expenses incurred by it in connection
with such Event of Default and prior to its waiver, such Event of Default shall
cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereon except to the extent expressly so
waived. Notwithstanding any other provisions of this Agreement, for purposes of
waiving any Event of Default pursuant to this Section 7.04, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting Rights with respect to the matters described
above as they would if any other Person held such Certificates.
Section 7.05 Trustee Advances.
If the Servicer fails to fulfill its obligations hereunder to make
any Advances, the Trustee shall perform such obligations (x) within one Business
Day of such failure by the Servicer with respect to Servicing Advances to the
extent a Responsible Officer of the Trustee has been notified in writing of such
failure with respect to such Servicing Advances and (y) by 1:00 p.m., New York
City time, on the related Distribution Date with respect to P&I Advances. With
respect to any such Advance made by the Trustee, the Trustee shall succeed to
all of the Servicer's rights with respect to Advances hereunder, including,
without limitation, the Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Servicer's default in its obligations hereunder); provided, however,
that if Advances made by both the Trustee and the Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts available to repay such Advances and the interest thereon hereunder
shall be applied entirely to the Advances outstanding to the Trustee, until such
Advances shall have been repaid in full, together with all interest accrued
thereon, prior to reimbursement of the Servicer for such Advances. The Trustee
shall be entitled to conclusively rely on any notice given with respect to a
Nonrecoverable Advance hereunder.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, then
(subject to Section 8.02(vii) below) the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall make a request to the responsible party to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Servicer or
the Special Servicer, and accepted by the Trustee in good faith, pursuant to
this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action); and
(iv) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.01, the Trustee shall
have no duty except in the capacity as successor Servicer or successor
Special Servicer (A) to see to any recording, filing or depositing of this
Agreement or any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any
re-recording, refiling or redepositing of any thereof, (B) to see to any
insurance, and (C) to confirm or verify the contents of any reports or
certificates of the Servicer or Special Servicer delivered to the Trustee
pursuant to this Agreement reasonably believed by the Trustee to be
genuine and to have been signed or presented by the proper party or
parties.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless, in the Trustee's reasonable opinion,
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; the Trustee shall not be required to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default which has not been cured, to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v)Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such reasonable examination shall
be paid by the Servicer or, if paid by the Trustee, shall be repaid by the
Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such
agents or attorneys shall not relieve the Trustee of its duties or
obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall
not be required to take any action with respect to, or be deemed to have
notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall
have received written notice thereof. In the absence of receipt of such
notice and such actual knowledge otherwise obtained, the Trustee may
conclusively assume that there is no default or Event of Default;
(viii) The Trustee shall not be responsible for any act or
omission of the Servicer, the Special Servicer or the Directing
Certificateholder (unless the Trustee is acting as Servicer, Special
Servicer or the Directing Certificateholder, as the case may be) or of the
Depositor; and
(ix) The Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the power
granted hereunder.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee in Section 2.04, shall be taken as the
statements of the Depositor, the Servicer or the Special Servicer, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee does not make any representations as to the validity or sufficiency of
this Agreement or of any Certificate or of any Loan or related document. The
Trustee shall not be accountable for the use or application by the Depositor of
any of the Certificates issued to it or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor in respect of the
assignment of the Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Collection Account or any other account by or on behalf of
the Depositor, the Servicer, the Special Servicer or the Trustee. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Servicer or the Special Servicer, and accepted
by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual capacity and not as Trustee, may
become the owner or pledgee of Certificates, and may deal with the Depositor,
the Servicer, the Special Servicer, the Initial Purchaser and the Underwriters
in banking transactions, with the same rights it would have if it were not
Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) As compensation for the performance of its duties, the Trustee
shall be paid the Trustee Fee, equal to one month's interest at the Trustee Fee
Rate on the Stated Principal Balance of each Loan or REO Loan, which shall cover
recurring and otherwise reasonably anticipated expenses of the Trustee. The
Trustee Fee (which shall not be limited to any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole form of compensation for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder.
(b) [Reserved].
(c) The Trustee shall be paid or reimbursed by the Trust Fund upon
its request for all reasonable expenses and disbursements incurred by the
Trustee pursuant to and in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ) to
the extent such payments are "unanticipated expenses incurred by the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(iii) except any
such expense, disbursement or advance as may arise from its negligence, bad
faith or willful misconduct; provided, however, that subject to Section
8.02(iii) and 8.14(b), respectively, the Trustee shall not refuse to perform any
of its duties hereunder solely as a result of the failure to be paid the Trustee
Fee or the Trustee's expenses.
(d) The Trustee and any Affiliate, director, officer, employee or
agent of the Trustee shall be indemnified and held harmless by the Trust Fund
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement, and expenses incurred in becoming successor
servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, this Agreement, the Loans, the Certificates or any
act or omission of the Trustee relating to the exercise and performance of any
of the powers and duties of the Trustee hereunder; provided, however, that
neither the Trustee nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(d) for (i) allocable
overhead, (ii) routine expenses or disbursements incurred or made by or on
behalf of the Trustee in the normal course of the Trustee's performing its
duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 8.05(d) shall survive any resignation or removal
of the Trustee and appointment of a successor thereto.
(e) [Reserved].
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank or national banking
association, organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred under this Agreement, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority and shall not be an Affiliate of the
Servicer or the Special Servicer (except during any period when the Trustee is
acting as, or has become successor to, the Servicer or the Special Servicer, as
the case may be, pursuant to Section 7.02), (ii) an institution insured by the
Federal Deposit Insurance Corporation and (iii) an institution whose long-term
senior unsecured debt is rated "AA-" or higher by S&P, "AA-" or higher by Fitch
(or such entity as would not, as evidenced in writing by such Rating Agency,
result in the qualification (as applicable), downgrading or withdrawal of any of
then-current ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
either REMIC created hereunder is in a state or local jurisdiction that imposes
a tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Trustee shall
elect either to (i) resign immediately in the manner and with the effect
specified in Section 8.07, (ii) pay such tax at no expense to the Trust Fund or
(iii) administer each REMIC created hereunder from a state and local
jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer and the Rating Agencies by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Servicer, the Special Servicer and the Certificateholders by
the Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee. The resigning Trustee
shall be responsible for the payment of all reasonable expenses incurred in
connection with such resignation and discharge and the appointment of a
successor trustee
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 or if the Depositor has received
notice from the Rating Agencies that failure to remove the Trustee will result
in a downgrade or withdrawal of the then-current rating assigned to any Class of
Certificates, and shall fail to resign after written request therefor by the
Depositor or the Servicer, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Depositor may remove
the Trustee and appoint a successor trustee acceptable to the Servicer and the
Rating Agencies (as evidenced in writing by such Rating Agency that such removal
and appointment would not result in the qualification (as applicable),
downgrading or withdrawal of any of then-current ratings then assigned thereby
to the Certificates), by written instrument, in duplicate, which instrument
shall be delivered to the Trustee so removed and to the successor trustee. A
copy of such instrument shall be delivered to the Servicer, the Special Servicer
and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Servicer, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by the Servicer. The Trustee shall be reimbursed for all
costs and expenses incurred by it in connection with such removal within 30 days
of demand therefor from amounts on deposit in the Lower-Tier Distribution
Account (provided the Trustee is removed without cause).
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Within 30 days following any succession of the Trustee under this
Agreement, the predecessor Trustee shall be paid all accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred. No Trustee shall be liable for any action or
omission of any successor Trustee.
Section 8.08 Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Servicer, the
Special Servicer and to its predecessor Trustee, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee, shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein. The predecessor Trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder, and the Depositor, the Servicer, the
Special Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.08, the Servicer shall mail notice of the succession
of such Trustee hereunder to the Depositor and the Certificateholders. If the
Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, such successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
Section 8.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee, hereunder; provided, that, in the case of
the Trustee, such successor Person shall be eligible under the provisions of
Section 8.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 [Reserved]
Section 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Private
Certificate to an Independent third party, the Depositor shall provide to the
Trustee a copy of any private placement memorandum or other disclosure document
used by the Depositor or its Affiliate in connection with the offer and sale of
the Class of Certificates to which such Private Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee, the Depositor promptly shall inform the Trustee of such event and
shall deliver to the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented.
The Trustee shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance written notice,
make available during normal business hours for review by any Holder of a
Certificate, the Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder, any Rating Agency, the Underwriters or any other Person to
whom the Trustee believes such disclosure is appropriate, originals or copies of
the following items to the extent such documents have been delivered to the
Trustee: (i) in the case of a Holder or prospective transferee of a Private
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Private Certificate belongs,
in the form most recently provided to the Trustee and (ii) in all cases, (A)
this Agreement and any amendments hereto entered into pursuant to Section 10.01,
(B) all statements required to be delivered to Certificateholders of the
relevant Class pursuant to Section 4.02 since the Closing Date, (C) all
Officer's Certificates delivered to the Trustee since the Closing Date pursuant
to Section 3.13, (D) all accountants' reports delivered to the Trustee since the
Closing Date pursuant to Section 3.14, (E) any and all notices, reports and
Environmental Assessments delivered to the Trustee with respect to any Mortgaged
Property securing a Defaulted Loan as to which the environmental testing
contemplated by Section 3.09(c) revealed that either of the conditions set forth
in clauses (i) and (ii) of the first sentence thereof was not satisfied (but
only for so long as such Mortgaged Property or the related Loan are part of the
Trust Fund), (F) any and all modifications, waivers and amendments of the terms
of a Loan entered into by the Servicer or the Special Servicer and delivered to
the Trustee pursuant to Section 3.20 (but only for so long as the affected Loan
is part of the Trust Fund), (G) any and all Officer's Certificates delivered to
the Trustee to support the Servicer's determination that any P&I Advance or
Servicing Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (H) any and all of the
Loan Documents contained in the Mortgage File, (I) any and all Appraisals
obtained pursuant to the definition of "Appraisal Reduction" herein, (J)
information regarding the occurrence of Servicing Transfer Events as to the
Loans and (K) any and all Sub-Servicing Agreements and any amendments thereto
and modifications thereof.
Copies of any and all of the foregoing items will be available from
the Trustee upon written request; provided, however, that the Trustee shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies, except in the case of copies provided to
the Rating Agencies, which shall be free of charge. In addition, without
limiting the generality of the foregoing, the Holder of any Class K, Class L,
Class M and Class N Certificate may upon written request from the Trustee obtain
a copy of any report (other than the Asset Status Report) delivered to the
Rating Agencies under this Agreement.
(b) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Servicer and the Trustee shall, in accordance with such reasonable rules and
procedures as each may adopt (which may include the requirement that an
agreement that provides that such information shall be used solely for purposes
of evaluating the investment characteristics of the Certificates be executed),
also make the reports available to Certificateholders pursuant to Section 4.02,
as well as certain additional information received by the Servicer or the
Trustee, as the case may be, to any Certificateholder, the Underwriters, the
Initial Purchaser, any Certificate Owner or any prospective investor identified
as such by a Certificate Owner or the Underwriters, that requests such reports
or information; provided that the Servicer or the Trustee, as the case may be,
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing copies of such reports or
information.
(c) With respect to any information furnished by the Trustee or the
Servicer pursuant to this Section 8.12, the Trustee or Servicer, as the case may
be, shall be entitled to indicate the source of such information and the Trustee
or Servicer, as applicable, may affix thereto any disclaimer it deems
appropriate in its discretion. The Trustee or the Servicer, as applicable, shall
notify Certificateholders of the availability of any such information in any
manner as it, in its sole discretion, may determine. In connection with
providing access to or copies of the items described in the preceding paragraph,
the Trustee or the Servicer, as the case may be, may require (a) in the case of
Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Servicer or
Trustee, as applicable, generally to the effect that such Person is a beneficial
holder of Certificates or an investment advisor representing such Person and is
requesting the information solely for use in evaluating such Person's investment
in the Certificates and will otherwise keep such information confidential and
(b) in the case of a prospective purchaser or an investment advisor representing
such Person, confirmation executed by the requesting Person in form and
substance reasonably acceptable to the Trustee or the Servicer, as the case may
be, generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein or an investment advisor representing such
Person, and is requesting the information solely for use in evaluating a
possible investment in Certificates. None of the Servicer or the Trustee shall
be liable for the dissemination of information in accordance with this
Agreement.
Section 8.13 Representations, Warranties and Covenants of the
Trustee.
The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws of the
United States;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks specifically and (b) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
Trustee to perform its obligations under this Agreement;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Trustee to perform its obligations under this Agreement;
and
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
<PAGE>
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
Section 9.01 Termination Upon Repurchase or Liquidation of All
Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the Pool
I Servicer, the Pool II Servicer, the Pool I Special Servicer, Pool II Special
Servicer and the Trustee (other than the obligations of the Trustee to provide
for and make payments to Certificateholders as hereafter set forth) shall
terminate upon payment (or provision for payment) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required hereunder to be so
paid on the Distribution Date following the earliest to occur of (i) the
purchase by any Mortgage Loan Seller, the Pool I Special Servicer, the Holders
of the Controlling Class or the Pool I Servicer of all the Loans and each REO
Property remaining in the Trust Fund at a price equal to (a) the sum of (1) the
aggregate Purchase Price of all the Loans (exclusive of REO Loans) included in
the Trust Fund and (2) the Appraised Value of each REO Property, if any,
included in the Trust Fund (such Appraisals in this subclause (2) to be
conducted by an Appraiser selected and mutually agreed upon by the Pool I
Servicer, the Pool II Servicer and the Trustee, and approved by more than 50% of
the Voting Rights of the Classes of Certificates then outstanding (other than
the Controlling Class if the Controlling Class is exercising such option unless
the Controlling Class is the only Class of Certificates then outstanding)),
minus (b) solely in the case where the Pool I Servicer or Pool II Servicer is
effecting such purchase, the aggregate amount of unreimbursed Advances, together
with any interest accrued and payable to the Pool I Servicer or Pool II Servicer
, as the case may be, in respect of such Advances in accordance with Sections
3.03(d) and 4.03(d) and any unpaid Servicing Fees, remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the Pool I Servicer or
the Pool II Servicer in connection with such purchase), (ii) the Distribution
Date in April 2062 and (iii) the final payment or other liquidation (or any
advance with respect thereto) of the last Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the trust created hereby
continue beyond the earlier of (i) the Rated Final Distribution Date and (ii)
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
The CSFB Mortgage Loan Seller may, at its option, elect to purchase
all of the Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the Trustee and the other parties hereto within 60 days of the first
Distribution Date on which the aggregate Stated Principal Balances of the Loans
and any REO Loans remaining in the Trust Fund is less than 1.00% of the
aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement. If the CSFB Mortgage Loan Seller does not exercise such
option within 60 days after it becomes exercisable by the CSFB Mortgage Loan
Seller, the NCCB Mortgage Loan Seller may notify the CSFB Mortgage Loan Seller,
the MSDWMC Mortgage Loan Seller, the Special Servicer and the Trustee of its
intention to exercise such option, and if the CSFB Mortgage Loan Seller fails to
exercise such option within ten Business Days thereafter, the NCCB Mortgage Loan
Seller shall be entitled to exercise such option. If the NCCB Mortgage Loan
Seller does not exercise such option within 60 days after it becomes exercisable
by the NCCB Mortgage Loan Seller, the MSDWMC Mortgage Loan Seller may notify the
CSFB Mortgage Loan Seller, the NCCB Mortgage Loan Seller, the Special Servicer
and the Trustee of its intention to exercise such option, and if the NCCB
Mortgage Loan Seller fails to exercise such option within ten Business Days
thereafter, the MSDWMC Mortgage Loan Seller shall be entitled to exercise such
option. If the MSDWMC Mortgage Loan Seller does not exercise such option within
60 days after it becomes exercisable by the MSDWMC Mortgage Loan Seller, the
Pool I Special Servicer may notify the CSFB Mortgage Loan Seller, the NCCB
Mortgage Loan Seller, the MSDWMC Mortgage Loan Seller and the Trustee of its
intention to exercise such option, and if the MSDWMC Mortgage Loan Seller fails
to exercise such option within ten Business Days thereafter, the Pool I Special
Servicer shall be entitled to exercise such option. If the Pool I Special
Servicer does not exercise such option within 60 days after it becomes
exercisable by the Pool I Special Servicer, the Holders of a majority of the
Percentage Interests in the Controlling Class may notify the CSFB Mortgage Loan
Seller, the MSDWMC Mortgage Loan Seller, the NCCB Mortgage Loan Seller, the
Special Servicer and the Trustee of their intention to exercise such option and
if none of the CSFB Mortgage Loan Seller, the MSDWMC Mortgage Loan Seller, the
NCCB Mortgage Loan Seller or the Special Servicer exercises such option within
ten Business Days thereafter, such Holders of the Controlling Class shall be
entitled to exercise such option. If the Holders of a majority of the Percentage
Interests of the Controlling Class do not exercise such option within 60 days
after it becomes exercisable by them, the Pool I Servicer may notify the CSFB
Mortgage Loan Seller, the MSDWMC Mortgage Loan Seller, the NCCB Mortgage Loan
Seller, the Special Servicer, the Holders of the Controlling Class and the
Trustee of the Servicer's intention to exercise such option, and if none of the
CSFB Mortgage Loan Seller, the MSDWMC Mortgage Loan Seller, the NCCB Mortgage
Loan Seller, the Special Servicer or the Holders of a majority of the Percentage
Interests in the Controlling Class exercise such option within ten Business Days
thereafter, the Servicer will be entitled to exercise such option.
If the CSFB Mortgage Loan Seller, the MSDWMC Mortgage Loan Seller,
the NCCB Mortgage Loan Seller, the Special Servicer, the Holders of the
Controlling Class or the Servicer purchases all of the Loans and each REO
Property remaining in the Trust Fund in accordance with the preceding paragraph,
the CSFB Mortgage Loan Seller, the MSDWMC Mortgage Loan Seller, the NCCB
Mortgage Loan Seller, the Special Servicer, the Holders of the Controlling Class
or the Servicer, as applicable, shall deposit in the Lower-Tier Distribution
Account not later than the P&I Advance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of (i) any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Collection Account and (ii) any portion thereof representing accrued and
unpaid Excess Interest, which shall be deposited in the Excess Interest
Distribution Account). In addition, the Servicer shall transfer to the
Lower-Tier Distribution Account all amounts required to be transferred thereto
on such P&I Advance Date from the Collection Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in the
Collection Account that would otherwise be held for future distribution. Upon
confirmation that such final deposits have been made, the Trustee shall release
or cause to be released to the CSFB Mortgage Loan Seller, the MSDWMC Mortgage
Loan Seller, the NCCB Mortgage Loan Seller, the Special Servicer, the Holders of
the Controlling Class or the Servicer, as applicable, the Mortgage Files for the
remaining Loans, and the Trustee shall execute all assignments, endorsements and
other instruments furnished to it by the CSFB Mortgage Loan Seller, the MSDWMC
Mortgage Loan Seller, the NCCB Mortgage Loan Seller, the Special Servicer, the
Holders of the Controlling Class or the Servicer, as applicable, as shall be
necessary to effectuate transfer of the Loans and REO Properties remaining in
the Trust Fund and its rights under the related Mortgage Loan Purchase
Agreement.
For purposes of this Section 9.01, the Directing Certificateholder,
with the consent of the Holders of the Controlling Class, shall act on behalf of
the Holders of the Controlling Class in purchasing the assets of the Trust Fund
and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Trustee by letter to the Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Loans and each REO Property remaining
in the Trust Fund, not earlier than the 15th day and not later than the 25th day
of the month next preceding the month of the final distribution on the
Certificates, or (b) otherwise during the month of such final distribution on or
before the P&I Advance Determination Date in such month, in each case specifying
(i) the Distribution Date upon which the Trust Fund will terminate and final
payment of the Certificates will be made, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the offices of the Trustee or such other location therein
designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Prepayment Premiums and Yield Maintenance Charges distributable pursuant
to Section 4.01(d) to the Upper-Tier Distribution Account pursuant to Section
3.04(b) and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account that are allocable to payments on
the Class of Certificates so presented and surrendered. Amounts transferred from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of
the final Distribution Date shall be allocated for the purposes, in the amounts
and in accordance with the priority set forth in Sections 4.01(a) and 4.01(e)
and shall be distributed in termination and liquidation of the Uncertificated
Lower-Tier Interests and the Class LR Certificates in accordance with Sections
4.01(b) and (d). Any funds not distributed on such Distribution Date shall be
set aside and held uninvested in trust for the benefit of Certificateholders not
presenting and surrendering their Certificates in the aforesaid manner and shall
be disposed of in accordance with this Section 9.01 and Section 4.01(h).
Anything in this Section 9.01 to the contrary notwithstanding, the
Holders of the Class V-1 and Class V-2 Certificates shall receive that portion
of the proceeds of a sale of the assets of the Trust Fund allocable to accrued
and unpaid Excess Interest.
Section 9.02 Additional Termination Requirements.
If the CSFB Mortgage Loan Seller, the NCCB Mortgage Loan Seller, the
MSDWMC Mortgage Loan Seller, the Pool I Special Servicer, the Holders of the
Controlling Class or the Pool I Servicer purchases all of the Loans and each REO
Property remaining in the Trust Fund as provided in Section 9.01, the Trust Fund
shall be terminated in accordance with the following additional requirements,
which meet the definition of a "qualified liquidation" in Section 860F(a)(4) of
the Code:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to each of the Upper-Tier
REMIC's and the Lower-Tier REMIC's final Tax Returns pursuant to Treasury
Regulations Section 1.860F-1;
(ii) within such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Lower-Tier REMIC to the CSFB Mortgage
Loan Seller, the MSDWMC Mortgage Loan Seller, the NCCB Mortgage Loan
Seller, the Special Servicer, the Holders of the Controlling Class or the
Servicer, as the case may be, for cash; and
(iii) immediately following the making of the final payment on
the Uncertificated Lower-Tier Interests and the Certificates, the Trustee
shall distribute or credit, or cause to be distributed or credited, to the
Holders of the Class LR Certificates (in the case of the Lower-Tier REMIC)
and the Class R Certificates (in the case of the Upper-Tier REMIC) all
cash on hand (other than cash retained to meet claims), in the Trust Fund
and each of the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate
at that time.
Section 9.03 Purchase of ARD Loans.
The Holder of a 100% Percentage Interest in the Class V-1
Certificates may purchase any ARD Loan which is a CSFB Loan and the Holder of a
100% Percentage Interest in the Class V-2 Certificates may purchase any ARD Loan
which is a MSDWMC Loan, in each case, for up to two months after its Anticipated
Repayment Date at a price equal to the sum of the following:
(i) 100% of the outstanding principal balance of such Loan on
such Anticipated Repayment Date or Maturity Date, as applicable (less any
P&I Advances previously made on account of principal);
(ii) all unpaid interest accrued on such principal balance of
such Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date or Maturity Date,
as applicable (less any P&I Advances previously made on account of
interest);
(iii) the aggregate amount of all unreimbursed Advances with
respect to such Loan, with interest thereon at the Reimbursement Rate, and
unpaid Servicing Fees, Special Servicing Fees and Trustee Fees; and
(iv) the amount of any expenses incurred by the Trust Fund in
connection with such purchase;
provided, however, that any such purchase may be consummated only if the
applicable Holder, at its expense, provides the Trustee with an Opinion of
Counsel to the effect that such purchase (or such right to purchase) would not
cause (a) either REMIC created hereunder to fail to qualify as a REMIC under the
Code at any time that any Certificate is outstanding and (b) would not cause the
arrangement between the Trust and the Class V-1 or Class V-2 Certificateholders
to be other than a grantor trust for federal income tax purposes, and (i) an
Opinion of Counsel to the effect that such purchase would not result in a gain
which would be subject to the tax on net income derived from prohibited
transactions imposed by Code Section 860F(a)(1) or otherwise result in the
imposition of any other tax on either REMIC created hereunder under the REMIC
Provisions or (ii) an accountant's certification to the effect that such
purchase would not result in the realization of any net income to either REMIC
created hereunder.
The proceeds of any such purchase hereunder shall be deposited in
the Collection Account and disbursed as provided herein.
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or
to correct any error;
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of either
REMIC created hereunder as a REMIC at all times that any Certificate
(other than the Class V-1 and Class V-2 Certificates) is outstanding or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either REMIC created hereunder pursuant to the Code that would be a
claim against the Trust Fund or either REMIC created hereunder, provided
that the Trustee has received an Opinion of Counsel to the effect that (a)
such action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the interests of
any Certificateholder, and (c) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating assigned
to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
(iv) to change the timing and/or nature of deposits into the
Collection Account, the Distribution Accounts or REO Account or to change
the name in which the Collection Account is maintained, provided that (a)
the P&I Advance Date shall in no event be later than the related
Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the Trustee, adversely affect in any material
respect the interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that (a) such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect, and (b) such change shall not, as evidenced by an Opinion of
Counsel addressed to the Trustee, cause the Trust Fund, either REMIC
created hereunder or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person or a
Transfer from a Person other than a U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee, adversely affect in any material respect the interests of any
Certificateholder not consenting thereto; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the then-current rating or ratings assigned to each
Class of Certificates by each Rating Agency as confirmed in writing.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding;
(iv) modify the Servicing Standard in any manner which adversely
affects certificateholders without the consent of the Holders of all
Certificates; or
(v) amend this Section 10.01.
(c) Notwithstanding the foregoing, the Trustee will not be entitled
to consent to any amendment hereto without having first received an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Servicer, the Depositor, the Special Servicer, the Trustee or any other
specified person in accordance with such amendment will not result in the
imposition of a tax on the Trust Fund, either REMIC created hereunder or cause
either REMIC created hereunder to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment to each Rating Agency and each
Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 10.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement in furtherance of the rights and interests of Certificateholders,
the cost of any Opinion of Counsel required in connection therewith pursuant to
Section 10.01(a), (b) or (c) shall be payable out of the Collection Account.
Section 10.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the cost
of which shall be paid by the Depositor) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Loan,
unless, with respect to any suit, action or proceeding upon or under or with
respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby.
It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 10.03(c), each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 10.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 10.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) (a) in the case of the Depositor, Credit
Suisse First Boston Mortgage Securities Corp., Eleven Madison Avenue, New York,
New York 10010, Attention: Allan J. Baum, with a copy to Colleen Graham, Esq.,
Compliance Department, telecopy number: (212) 325-8162; (ii) in the case of the
Underwriters and the Initial Purchaser, (a) Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, New York 10010, Attention: Allan
J. Baum, with a copy to Colleen Graham, Esq., Compliance Department, telecopy
number: (212) 325-8162, (b) Morgan Stanley & Co. Incorporated, 1585 Broadway,
New York, New York 10036, Attention: Brian DiDonato, telecopy number: (212)
761-0711, with a copy to Gregory D. Walker, telecopy number: (212) 762-9224;
(iii) in the case of the Servicers (a) CapMark Services, L.P., 245 Peachtree
Center Avenue N.E., Suite 1800, Atlanta, Georgia 30303, Attention: Portfolio
Manager - CSFB-2000-C1, telecopy number: (404) 654-2500 with a copy to CapMark
Services, L.P., 245 Peachtree Center Avenue N.E., Suite 1800, Atlanta, Georgia
30303, Attention: Legal Department, and (b) National Consumer Cooperative Bank,
1401 Eye Street, NW-Suite 700, Washington, DC 20005, Attention: Managing
Director-Real Estate Master Servicing, telecopy number: (202) 336-7800; (iv) in
the case of the Special Servicer (a) Lennar Partners, Inc. 760 Northwest 107th
Avenue, Suite 400, Miami, Florida 33172, Attention: Ron Schrager, telecopy
number: (305) 226-3428, and (b) National Consumer Cooperative Bank, 1401 Eye
Street, NW-Suite 700, Washington, DC 20005, Attention: Managing Director-Real
Estate Master Servicing, telecopy number: (202) 336-7800; (v) in the case of the
Trustee, Wells Fargo Bank Minnesota, N.A., at the Corporate Trust Office,
telecopy number: (410) 884-2360; (vi) in the case of the Rating Agencies, (a)
Fitch, One State Street Plaza, New York, New York 10004, Attention: Commercial
Mortgage Monitoring Group, telecopy number: (212) 635-0295; and (b) Standard and
Poor's Ratings Services, 55 Water Street, New York 10041, Attention: CMBS
Surveillance Group, telecopy number: (212) 438-2662; (vii) in the case of the
CSFB Mortgage Loan Seller, Credit Suisse First Boston Mortgage Capital LLC,
Eleven Madison Avenue, New York, New York 10010, Attention: Compliance
Department, telecopy number: (212) 325-8162; (viii) in the case of the MSDWMC
Mortgage Loan Seller, Morgan Stanley Dean Witter Mortgage Capital Inc., 1585
Broadway, New York, New York, 10036, Attention: Russell Rahbany, Vice President,
telecopy number: (212) 761-3286; and (ix) in the case of the NCCB Mortgage Loan
Seller, National Consumer Cooperative Bank, 1401 Eye Street, NW-Suite 700,
Washington, DC 20005, Attention: Managing Director - Capital Markets, telecopy
number: (202) 336-7800 or as to each such Person such other address as may
hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first Class, postage prepaid, to
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Loans, all principal and interest received or
receivable with respect to the Loans (other than principal and interest payments
due and payable prior to the Cut-off Date and Principal Prepayments received
prior to the Cut-off Date), all amounts held from time to time in the Collection
Account, the Distribution Accounts and, if established, the REO Account, and all
reinvestment earnings on such amounts, and all of the Depositor's right, title
and interest in and to the proceeds of any title, hazard or other Insurance
Policies related to such Loans and (ii) this Agreement shall constitute a
security agreement under applicable law. This Section 10.07 shall constitute
notice to the Trustee pursuant to any of the requirements of the applicable UCC.
Section 10.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
Section 10.09 Article and Section Headings.
The article and Section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 10.10 Notices to Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Servicer or the
Special Servicer;
(iv) any change in the location of either of the Distribution
Accounts;
(v) the repurchase of Loans by any Mortgage Loan Seller, FINOVA,
FINOVA Capital or Llama pursuant to Section 7 of the related Mortgage Loan
Purchase Agreement or Section 9.3 of the related FINOVA Mortgage Loan
Purchase Agreement or Section 5.1 of the related Llama Mortgage Loan
Purchase Agreement, as applicable; and
(vi) the final payment to any Class of Certificateholders.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Collection Account.
(c) Each of the Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) all reports and other items for Loans delivered by each of
the Servicer and Special Servicer pursuant to Section 3.12;
(iii) each of its annual independent public accountants'
servicing reports described in Section 3.14;
(iv) each waiver and consent provided pursuant to Section 3.08
for Loans;
(v) any officers' certificates delivered by the Servicer and the
Special Servicer to the Trustee;
(vi) all site inspections (unless otherwise directed by such
Rating Agency);
(vii) all operating statements (unless otherwise directed by such
Rating Agency);
(viii) all rent rolls, and with respect to cooperative
properties, maintenance schedules, and sales reports to the extent
provided by the Borrowers and requested by such Rating Agency;
(ix) any proposed no downgrade request;
(x) any extension or modification of the Maturity Date of any
Loan;
(xi) any modification, waiver or amendment of any term of any
Loan; and
(xii) any other document that shall be reasonably requested by
any Rating Agency.
(d) The Trustee shall promptly after each Distribution Date make
available to each Rating Agency a copy of the related Statement to
Certificateholders.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
Depositor
By:
-------------------------------------
Name:
Title:
CAPMARK SERVICES, L.P.
Pool I Servicer
By: PEARL MORTGAGE, INC.,
its sole general partner
By:
---------------------------------
Name:
Title:
NATIONAL CONSUMER COOPERATIVE BANK
Pool II Servicer and Pool II
Special Servicer
By:
-------------------------------------
Name:
Title:
LENNAR Partners, Inc.
Pool I Special Servicer
By:
-------------------------------------
Name:
Title:
WELLS FARGO BANK MINNESOTA, N.A.
Trustee
By:
-------------------------------------
Name: Jack A. Aini
Title: Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of August, 2000 before me, a notary public in and
for said State, personally appeared ______________________________________ known
to me to be a __________________________ of Credit Suisse First Boston Mortgage
Securities Corp. and a __________________________ of Credit Suisse First Boston
Corporation, the corporations that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporations, and
acknowledged to me that such corporations executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of August, 2000 before me, a notary public in and
for said State, personally appeared _________________________________ know to me
to be a _________________________ of Pearl Mortgage, Inc., a Delaware
corporation that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of August, 2000 before me, a notary public in and
for said State, personally appeared _________________________________ know to me
to be a _________________________ of National Consumer Cooperative Bank, a
corporation that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of August, 2000 before me, _______________________,
a notary public in and for said State, personally appeared
______________________________ known to me to be a ___________________ of Lennar
Partners, Inc., a corporation that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of August, 2000 before me, _______________________,
a notary public in and for said State, personally appeared
______________________________ known to me to be a ___________________ of Wells
Fargo Bank Minnesota, N.A., a national banking association that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said banking association, and acknowledged to me that such banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
<PAGE>
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
Class A-[1]-[2] Certificate
Pass-Through Rate: [A-1] [7.325%] [Initial Class A-1 Certificate Balance:
$184,200,000]
Pass-Through Rate: [A-2] [7.5450%] [Initial Class A-2 Certificate Balance:
$677,500,000]
[CUSIP No. [A-1] 22540ASM1] Denomination of this Certificate:
$_________
[CUSIP No. [A-2] 22540ASN9]
Rated Final Distribution Date: April 2062
No.: A-[1][2]-[__]
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MSDWMC MORTGAGE LOAN SELLER, THE
NCCB MORTGAGE LOAN SELLER, THE POOL I SERVICER, THE POOL II SERVICER, THE POOL I
SPECIAL SERVICER, THE POOL II SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of July 11, 2000 (the
"Pooling and Servicing Agreement"), by and among CapMark Services, L.P., as
servicer (the "Pool I Servicer"), National Consumer Cooperative Bank, as
servicer (the "Pool II Servicer") and special servicer (the "Pool II Special
Servicer"), Lennar Partners, Inc., as special servicer (the "Pool I Special
Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), and
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"). All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement.
This Certificate is described in the Pooling and Servicing Agreement and is
issued pursuant to and subject to the Pooling and Servicing Agreement. By
acceptance of this Certificate, each Certificateholder assents to and becomes
bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest represented by this Certificate of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Certificate Balance equal to or in excess of $5,000,000; and in
all other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[1][2] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
Wells Fargo Bank MinnesotA, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated:_______________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
2000-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: _______________ By:____________________________________
Signature
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-X CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
Class A-X Certificate
(Variable Rate)
Pass-Through Rate: 0.7876%(1) Original Class A-X Notional Balance:
$1,111,999,815
CUSIP No. [144-A] 22540ASA7 Notional Denomination of this Certificate:
$________
CUSIP No. [Reg S] U12679AC7 Rated Final Distribution Date: April 2062
No.: A-X-[ ]
(1) The per annum rate, expressed as a percentage, obtained by dividing
(i) the sum of the product of (a) the Certificate Balance of the ClassA-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M and Class N Certificates and (b) the related Component
Rate for such Distribution Date by (ii) the sum of all such Certificate
Balances.
THIS CERTIFICATE IS AN "INTEREST ONLY" CERTIFICATE AND DOES NOT HAVE A
PRINCIPAL BALANCE. DISTRIBUTIONS WILL BE CALCULATED ON THE CLASS "A-X NOTIONAL
BALANCE."
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G (a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR IS A U.S. PERSON WITHIN THE MEANING OF RULE
902 UNDER REGULATION S.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MSDWMC MORTGAGE LOAN SELLER, THE
NCCB MORTGAGE LOAN SELLER, THE POOL I SERVICER, THE POOL II SERVICER, THE POOL I
SPECIAL SERVICER, THE POOL II SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of July 11, 2000 (the
"Pooling and Servicing Agreement"), by and among CapMark Services, L.P., as
servicer (the "Pool I Servicer"), National Consumer Cooperative Bank, as
servicer (the "Pool II Servicer") and special servicer (the "Pool II Special
Servicer"), Lennar Partners, Inc., as special servicer (the "Pool I Special
Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), and
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"). All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement.
This Certificate is described in the Pooling and Servicing Agreement and is
issued pursuant to and subject to the Pooling and Servicing Agreement. By
acceptance of this Certificate, each Certificateholder assents to and becomes
bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest represented by this Certificate of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Notional Balance equal to or in excess of $5,000,000; and in all
other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates. No sale,
transfer or other disposition of this Certificate shall be permitted other than
in accordance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-X Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
WELLS FARGO BANK MINNESOTA, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated: ___________________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
2000-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ________________ By:____________________________________
Signature
<PAGE>
EXHIBIT A-3
FORM OF CLASS [B][C][D] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
Class [B][C][D] Certificate
Pass-Through Rate [Class B]: [Initial Class B Certificate Balance:
Weighted Average Net Mortgage Rate $50,100,000]
minus 0.535%
Pass-Through Rate [Class C]: [Initial Class C Certificate Balance:
Weighted Average Net Mortgage Rate $44,500,000]
minus 0.390%
Pass-Through Rate [Class D]: [Initial Class D Certificate Balance:
Weighted Average Net Mortgage Rate $15,300,000]
minus 0.273%
[CUSIP No. [Class B] 22540ASP4] Denomination of this Certificate:
$__________
[CUSIP No. [Class C] 22540SQ2]
[CUSIP No. [Class D] 22540ASR0] Rated Final Distribution Date: April 2062
No.: [B][C][D]-[__]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2 AND CLASS A-X [AND CLASS [B] AND CLASS [C] CERTIFICATES] AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF
A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE POOL I
SERVICER, THE POOL II SERVICER, THE POOL I SPECIAL SERVICER, THE POOL II SPECIAL
SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MSDWMC MORTGAGE LOAN SELLER, THE
NCCB MORTGAGE LOAN SELLER, THE POOL I SERVICER, THE POOL II SERVICER, THE POOL I
SPECIAL SERVICER, THE POOL II SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of July 11, 2000 (the
"Pooling and Servicing Agreement"), by and among CapMark Services, L.P., as
servicer (the "Pool I Servicer"), National Consumer Cooperative Bank, as
servicer (the "Pool II Servicer") and special servicer (the "Pool II Special
Servicer"), Lennar Partners, Inc., as special servicer (the "Pool I Special
Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), and
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"). All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement.
This Certificate is described in the Pooling and Servicing Agreement and is
issued pursuant to and subject to the Pooling and Servicing Agreement. By
acceptance of this Certificate, each Certificateholder assents to and becomes
bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest represented by this Certificate of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Certificate Balance equal to or in excess of $5,000,000; and in
all other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B][C][D] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated: ___________________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
2000-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ________________ By:____________________________________
Signature
<PAGE>
EXHIBIT A-4
FORM OF CLASS [E][F][G][H][J] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
Class [E][F][G][H][J] Certificate
(Variable Rate)
[Pass-Through Rate [Class E]: [Initial Class E Certificate Balance:
$29,100,000]
[Pass-Through Rate [Class F]: [Initial Class F Certificate Balance:
$13,900,000]
[Pass-Through Rate [Class G]: Lesser
of 7.325% and Weighted Average Net [Initial Class G Certificate Balance:
Mortgage Rate $30,600,000]
[Pass-Through Rate [Class H]: Lesser
of 7.325% and Weighted Average Net [Initial Class H Certificate Balance:
Mortgage Rate $12,500,000]
[Pass-Through Rate [Class J]: Lesser
of 7.325% and Weighted Average Net [Initial Class J Certificate Balance:
Mortgage Rate $9,800,000]
[CUSIP No. [Class E] [144-A] Denomination of this Certificate:
22540ASB5] $[_________]
[CUSIP No. [Class E] [Reg S] U12679AD5]
[CUSIP No. [Class F] [144-A] 22540ASC3 Rated Final Distribution Date: April 2062
[CUSIP No. [Class F] [Reg S] U12679AE3]
[CUSIP No. [Class G] [144-A] 22540ASD1]
[CUSIP No. [Class G] [Reg S] U12679AFO]
[CUSIP No. [Class H] [144-A] 22540ASE9]
[CUSIP No. [Class H] [Reg S] U12679AG8]
[CUSIP No. [Class J] [144-A] 22540ASF6]
[CUSIP No. [Class J] [Reg S] U12679AH6]
No.: [E][F][G][H][J] -[__]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2, CLASS B, CLASS C AND CLASS D [AND CLASS [E] AND CLASS [F] AND CLASS
[G] AND CLASS [H] CERTIFICATES] AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF
A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE POOL I
SERVICER, THE POOL II SERVICER, THE POOL I SPECIAL SERVICER, THE POOL II SPECIAL
SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR IS A U.S. PERSON WITHIN THE MEANING OF RULE
902 UNDER REGULATION S.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MSDWMC MORTGAGE LOAN SELLER, THE
NCCB MORTGAGE LOAN SELLER, THE POOL I SERVICER, THE POOL II SERVICER, THE POOL I
SPECIAL SERVICER, THE POOL II SPECIAL SERVICER, THE TRUSTEE, OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Unless and until it is exchanged in whole or in part for Certificates in
definitive form, this Certificate may not be transferred except as a whole (i)
by The Depository Trust Company, a New York corporation ("DTC") to a nominee of
DTC, (ii) by a nominee of DTC to DTC or another nominee of DTC or (iii) by DTC
or any such nominee to a successor depository or a nominee of such successor
depository.
Unless this Certificate is presented by an authorized representative of
DTC, to the Certificate Registrar or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the registered
owner of a beneficial ownership interest in a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement, dated as of July 11, 2000 (the
"Pooling and Servicing Agreement"), by and among CapMark Services, L.P., as
servicer (the "Pool I Servicer"), National Consumer Cooperative Bank, as
servicer (the "Pool II Servicer") and special servicer (the "Pool II Special
Servicer"), Lennar Partners, Inc., as special servicer (the "Pool I Special
Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), and
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"). All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement.
This Certificate is described in the Pooling and Servicing Agreement and is
issued pursuant to and subject to the Pooling and Servicing Agreement. By
acceptance of this Certificate, each Certificateholder assents to and becomes
bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest represented by this Certificate of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Certificate Balance equal to or in excess of $5,000,000; and in
all other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [E][F][G][H][J] certificates referred to in the
within mentioned Pooling and Servicing Agreement.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated: ___________________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
2000-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ________________ By:____________________________________
Signature
<PAGE>
EXHIBIT A-5
FORM OF CLASS [K][L][M] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
Class[K][L][M] Certificate
[Pass-Through Rate (Class K): [Initial Certificate Principal Balance
Lesser of 7.325% and Weighted [Class K]: $11,100,000]
Average Net Mortgage Rate]
[Pass-Through Rate (Class L): [Initial Certificate Principal Balance
Lesser of 7.325% and Weighted [Class L]: $9,700,000]
Average Net Mortgage Rate]
[Pass-Through Rate (Class M): [Initial Certificate Principal Balance
Lesser of 7.325% and Weighted [Class M]: $8,400,000]
Average Net Mortgage Rate]
[CUSIP No. [Class K] 22540AMSG4] Denomination of this Certificate: $[______]
[CUSIP No. [Class L] 22540ASH2]
[CUSIP No. [Class M] 22540ASJ8] Rated Final Distribution Date: April 2062
No.: [K][L][M]-[ ]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND
CLASS J [AND CLASS [K] AND CLASS [L] CERTIFICATES] AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF
A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE POOL I
SERVICER, THE POOL II SERVICER, THE POOL I SPECIAL SERVICER, THE POOL II SPECIAL
SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MSDWMC MORTGAGE LOAN SELLER, THE
NCCB MORTGAGE LOAN SELLER, THE POOL I SERVICER, THE POOL II SERVICER, THE POOL I
SPECIAL SERVICER, THE POOL II SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION (the
"Certificateholder") is the registered owner of a beneficial ownership interest
in a trust (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of July 11, 2000 (the "Pooling and Servicing Agreement"), by and among
CapMark Services, L.P., as servicer (the "Pool I Servicer"), National Consumer
Cooperative Bank, as servicer (the "Pool II Servicer") and special servicer (the
"Pool II Special Servicer"), Lennar Partners, Inc., as special servicer (the
"Pool I Special Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
depositor (the "Depositor"). All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement. This Certificate is described in the Pooling and Servicing
Agreement and is issued pursuant to and subject to the Pooling and Servicing
Agreement. By acceptance of this Certificate, each Certificateholder assents to
and becomes bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest represented by this Certificate of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Certificate Balance equal to or in excess of $5,000,000; and in
all other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [K][L][M] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated:_______________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
2000-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: _______________ By:____________________________________
Signature
<PAGE>
EXHIBIT A-6
FORM OF CLASS [N] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
Class[N] Certificate
[Pass-Through Rate (Class N): Lesser [Initial Certificate Principal Balance
of 7.325% and Weighted Average Net [Class N]: $15,299,815]
Mortgage Rate]
[CUSIP No. [Class N] [144-A] 22540ASK5]
[CUSIP No. [Class N] [IAI] 22540ASL3] Denomination of this Certificate:
$[______]
Rated Final Distribution Date: April
2062
No. N-[ ]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1,
CLASS A-2, CLASS A-X, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF
A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE POOL I
SERVICER, THE POOL II SERVICER, THE POOL I SPECIAL SERVICER, THE POOL II SPECIAL
SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR IS A U.S. PERSON WITHIN THE MEANING OF RULE
902 UNDER REGULATION S.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MSDWMC MORTGAGE LOAN SELLER, THE
NCCB MORTGAGE LOAN SELLER, THE POOL I SERVICER, THE POOL II SERVICER, THE POOL I
SPECIAL SERVICER, THE POOL II SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION (the
"Certificateholder") is the registered owner of a beneficial ownership interest
in a trust (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of July 11, 2000 (the "Pooling and Servicing Agreement"), by and among
CapMark Services, L.P., as servicer (the "Pool I Servicer"), National Consumer
Cooperative Bank, as servicer (the "Pool II Servicer") and special servicer (the
"Pool II Special Servicer"), Lennar Partners, Inc., as special servicer (the
"Pool I Special Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
depositor (the "Depositor"). All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement. This Certificate is described in the Pooling and Servicing
Agreement and is issued pursuant to and subject to the Pooling and Servicing
Agreement. By acceptance of this Certificate, each Certificateholder assents to
and becomes bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest represented by this Certificate of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Certificate Balance equal to or in excess of $5,000,000; and in
all other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [N] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated: ___________________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
2000-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: ________________ By:____________________________________
Signature
<PAGE>
EXHIBIT A-7
FORM OF CLASS V-[1][2] CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
Class V-[1][2] Certificate
No.: V-[1][2]-[ ] Percentage Interest:
[100%]
THIS CERTIFICATE DOES NOT HAVE A PRINCIPAL BALANCE AND IS ENTITLED TO
RECEIVE DISTRIBUTIONS ONLY IN RESPECT OF EXCESS INTEREST, IF ANY.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF
A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE POOL I
SERVICER, THE POOL II SERVICER, THE POOL I SPECIAL SERVICER, THE POOL II SPECIAL
SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT. EACH PURCHASER OF THIS
CERTIFICATE IS HEREBY NOTIFIED THAT THE SELLER OF THIS CERTIFICATE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE TO ANY PERSON THAT IS AN
"INELIGIBLE CLASS V-1 OWNER" (AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT.)
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE REPRESENTS, FOR FEDERAL INCOME TAX PURPOSES, AN INTEREST
IN A GRANTOR TRUST CONSISTING OF THE EXCESS INTEREST AND YIELD PROTECTION
PAYMENTS (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) AND ANY HOLDER
THEREOF AGREES TO TREAT ITS INTEREST IN THE EXCESS INTEREST IN ACCORDANCE WITH
THIS REPRESENTATION.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE CSFB MORTGAGE LOAN SELLER, THE MSDWMC MORTGAGE LOAN SELLER, THE
NCCB MORTGAGE LOAN SELLER, THE POOL I SERVICER, THE POOL II SERVICER, THE POOL I
SPECIAL SERVICER, THE POOL II SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE UNDERLYING LOANS ARE
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the
"Certificateholder") is the registered owner of a beneficial ownership interest
in a trust (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of July 11, 2000 (the "Pooling and Servicing Agreement"), by and among
CapMark Services, L.P., as servicer (the "Pool I Servicer"), National Consumer
Cooperative Bank, as servicer (the "Pool II Servicer") and special servicer (the
"Pool II Special Servicer"), Lennar Partners, Inc., as special servicer (the
"Pool I Special Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
depositor (the "Depositor"). All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement. This Certificate is described in the Pooling and Servicing
Agreement and is issued pursuant to and subject to the Pooling and Servicing
Agreement. By acceptance of this Certificate, each Certificateholder assents to
and becomes bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest set forth above of the amount required to be distributed
to the Certificateholders of this Class on such Distribution Date pursuant to
Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Percentage Interest equal to 100%, and in all other cases by
check mailed to each such Certificateholder at such Certificateholder's address
appearing in the Certificate Register, in either case without presentation or
surrender of any Certificate held by such Certificateholder or the making of any
notation thereon. Distributions on the final Distribution Date with respect to
this Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class V-[1][2] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated:_______________
<PAGE>
EXHIBIT A-8
FORM OF RESIDUAL CERTIFICATE
Class [R][LR] CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE
IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE HELD OR TRANSFERRED TO A NON-U.S. PERSON (AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) OR DISQUALIFIED ORGANIZATION (AS
DEFINED BELOW).
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A KEOGH PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY ESSENTIALLY SIMILAR
FEDERAL STATE OR LOCAL LAW (A "SIMILAR LAW") (EACH A "PLAN"), OR (B) A
COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE
COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE
ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO
INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE COMPANY WOULD NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A MATERIALLY SIMILAR
CHARACTERIZATION UNDER ANY SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING
DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER
IN THE FORM SET FORTH IN THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT OR
(ii) IN THE EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B)
ABOVE, EXCEPT IN THE CASE OF A RESIDUAL CERTIFICATE, WHICH MAY NOT BE
TRANSFERRED UNLESS THE TRANSFEREE REPRESENTS IT IS NOT SUCH AN ENTITY SUCH
ENTITY SHALL PROVIDE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE THAT THE PURCHASE OR HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF
A PLAN WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN
ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR LAW, WILL NOT
CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE POOL I
SERVICER, THE POOL II SERVICER, THE POOL I SPECIAL SERVICER, THE POOL II SPECIAL
SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN AN OFFERED PRIVATE CERTIFICATE SHALL BE
DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY
PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION
WITHIN THE MEANING OF SECTION 406 OR 407 OF ERISA SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR LAW.
TRANSFER OF THIS CLASS R CERTIFICATE IS RESTRICTED AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS R CERTIFICATE MAY BE
MADE TO A "DISQUALIFIED ORGANIZATION" OR A NON-U.S. PERSON (AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT). A DISQUALIFIED ORGANIZATION (AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT) INCLUDES: ANY OF (i) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES OR
ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY THAT IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO
TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED
BY SUCH GOVERNMENTAL UNIT), (ii) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (iii) ANY
ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521
OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
(INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (iv) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(A)(2)(C) OF THE CODE AND (v) AN ELECTING LARGE PARTNERSHIP UNDER
CODE SECTION 775. NO TRANSFER OF THIS CLASS R CERTIFICATE WILL BE REGISTERED BY
THE CERTIFICATE REGISTRAR UNLESS THE PROPOSED TRANSFEREE HAS DELIVERED AN
AFFIDAVIT AFFIRMING, AMONG OTHER THINGS, THAT THE PROPOSED TRANSFEREE IS NOT A
DISQUALIFIED ORGANIZATION, IS NOT A NON-U.S. PERSON, AND IS NOT ACQUIRING THE
CLASS R CERTIFICATE FOR THE ACCOUNT OF A DISQUALIFIED ORGANIZATION OR A NON-U.S.
PERSON. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-U.S. PERSON OR ANY AGENT OF A DISQUALIFIED ORGANIZATION OR
A NON U.S. PERSON, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH PROPOSED TRANSFEREE
IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE TO A
SUBSTANTIAL TAX UPON THE UNAFFILIATED SELLER OR, IN CERTAIN CASES, UPON AN AGENT
ACTING FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS CLASS R
CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY
TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE
PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF
THIS CERTIFICATE OWNED THROUGH SUCH PASS-THROUGH ENTITY BY SUCH DISQUALIFIED
ORGANIZATION, AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR
PURPOSES OF THE PRECEDING SENTENCE, THE TERM "PASS-THROUGH" ENTITY INCLUDES
REGULATED INVESTMENT COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST
FUNDS, PARTNERSHIPS, TRUSTS, ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER
I OF THE CODE APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES. ALL
INTERESTS IN AN "ELECTING LARGE PARTNERSHIP" WILL BE TREATED AS HELD BY
DISQUALIFIED ORGANIZATIONS FOR PURPOSES OF THIS TAX.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION (the
"Certificateholder") is the registered owner of a beneficial ownership interest
in a trust (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of July 11, 2000 (the "Pooling and Servicing Agreement"), by and among
CapMark Services, L.P., as servicer (the "Pool I Servicer"), National Consumer
Cooperative Bank, as servicer (the "Pool II Servicer") and special servicer (the
"Pool II Special Servicer"), Lennar Partners, Inc., as special servicer (the
"Pool I Special Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
depositor (the "Depositor"). All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement. This Certificate is described in the Pooling and Servicing
Agreement and is issued pursuant to and subject to the Pooling and Servicing
Agreement. By acceptance of this Certificate, each Certificateholder assents to
and becomes bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest set forth above of the amount required to be distributed
to the Certificateholders of this Class on such Distribution Date pursuant to
Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing by no later than five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered
Certificateholder of Certificates of the Class represented by this Certificate
with an initial Percentage Interest equal to 25%, and in all other cases by
check mailed to each such Certificateholder at such Certificateholder's address
appearing in the Certificate Register, in either case without presentation or
surrender of any Certificate held by such Certificateholder or the making of any
notation thereon. Distributions on the final Distribution Date with respect to
this Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Pool I Servicer, the Pool II Servicer, the
Pool I Special Servicer, the Pool II Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Pool I Servicer, the Pool II Servicer, the Pool I Special
Servicer, the Pool II Special Servicer and the Trustee with the consent of the
Holders of Certificates entitled to at least 66 2/3% of the Percentage Interests
of each Class affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, including any amendment
necessary to maintain the status of designated portions of the Trust Fund as a
REMIC, without the consent of the Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in
the Pool I Servicer, the Pool II Servicer, the Pool I Special Servicer, the Pool
II Special Servicer, the Depositor or the Trustee, except to the extent
described in the Pooling and Servicing Agreement, or any Affiliate thereof, nor
will this Certificate be insured or guaranteed by any governmental agency. This
Certificate is limited in right of payment to certain collections on the
Mortgage Loans, as more specifically set forth in the Pooling and Servicing
Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look
solely to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
www.ctslink.com/cmbs.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed by the manual or facsimile signature of the duly authorized signatory
of the Trustee.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R][LR] Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
Wells Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Signatory
Dated:_______________
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the within Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate, Series
2000-C1, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: _______________ By:____________________________________
Signature
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<PAGE>
EXHIBIT C-1
FORM OF QIB INVESTMENT REPRESENTATION LETTER -
QUALIFIED INSTITUTIONAL BUYER
Wells Fargo Bank Minnesota,
National Association
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)--
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 2000-C1
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2000-C1
Ladies and Gentlemen:
This letter is delivered pursuant to the Confidential Offering Circular
(the "Offering Circular") dated July 27, 2000 and to Section 5.02 of the Pooling
and Servicing Agreement dated as of July 11, 2000 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities Corp.,
as Depositor, CapMark Services, L.P., as Pool I Servicer, National Consumer
Cooperative Bank, as Pool II Servicer and Pool II Special Servicer, Lennar
Partners, Inc., as Pool I Special Servicer and you, as Trustee, on behalf of the
holders of Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2000-C1 (the "Certificates") in
connection with the transfer by ______________ to the undersigned (the
"Purchaser") of $____________ aggregate Certificate Balance of Class ____
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. The Purchaser is a "qualified institutional buyer" within the meaning
of Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser is aware that the transfer is
being made in reliance on Rule 144A, and the Purchaser has had the opportunity
to obtain the information required to be provided pursuant to paragraph
(d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account, (b) for resale to "qualified
institutional buyers" in transactions under Rule 144A, or (c) in the case of
Class A-X, Class E, Class F, Class G, Class H or Class J Certificates, for
resale to persons that are not "U.S. persons" within the meaning of Regulation S
under the Securities Act, and not in any event with the view to, or for resale
in connection with, any distribution thereof. The Purchaser understands that the
Certificate (and any subsequent Certificate) has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions), as expressed herein.
3. The Purchaser has reviewed the Offering Circular and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder, or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Trustee and all Certificateholders present and
future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. The Purchaser is a U.S. Person (as defined below) and it has attached
hereto an Internal Revenue Service ("IRS") Form W-9 (or successor form).
For this purpose, "U.S. Person" means (i) a citizen or resident of the
United States, (ii) a corporation or partnership created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia, (iii) an estate the income of which is includible in gross income for
United States tax purposes, regardless of its source, or (iv) a trust if a court
within the United States is able to exercise primary supervision of the
administration of the trust and one or more such U.S. Persons have the authority
to control all substantial decisions of the trust.
8. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), or (b) a person acting on behalf of or using the assets
of any such Plan (including an entity whose underlying assets include Plan
assets by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of the Certificates by such insurance company would be
eligible for the exemptive relief from the prohibited transaction provisions of
ERISA and Section 4975 of the Code that is available under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a) or
(b) above, such Purchaser is required to provide to the Trustee an opinion of
counsel in form and substance satisfactory to the Trustee and the Depositor to
the effect that the acquisition and holding of such Certificate by such
purchaser or transferee will not constitute or result in a non-exempt prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law and will
not subject the Trustee, the Pool I Servicer, the Pool II Servicer, the Pool I
Special Servicer, the Pool II Special Servicer, the Initial Purchaser or the
Depositor to any obligation or liability (including obligations or liabilities
under ERISA, Section 4975 of the Code or any Similar Law) in addition to those
set forth in the Pooling and Servicing Agreement, which opinion of counsel shall
not be at the expense of the Depositor, the Pool I Servicer, the Pool II
Servicer, the Pool I Special Servicer, the Pool II Special Servicer, the Trustee
or the Trust Fund.
10. In the event that we purchase any of the Certificates, we will acquire
Certificates having a minimum purchase price of not less than $25,000 [in the
case of the Class N Certificates, $100,000] for our own account or for any
separate account for which we are acting.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this Qualified
Institutional Buyer Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By: __________________________________
Name:
Title:
<PAGE>
EXHIBIT C-2
FORM OF REGULATION S INVESTMENT REPRESENTATION LETTER -
NON-U.S. PERSON
Wells Fargo Bank Minnesota,
National Association
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)--
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 2000-C1
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2000-C1
Ladies and Gentlemen:
This letter is delivered pursuant to the Confidential Offering Circular
(the "Offering Circular") dated July 27, 2000 and to Section 5.02 of the Pooling
and Servicing Agreement dated as of July 11, 2000 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities Corp.,
as Depositor, CapMark Services, L.P., as Pool I Servicer, National Consumer
Cooperative Bank, as Pool II Servicer and Pool II Special Servicer, Lennar
Partners, Inc., as Pool I Special Servicer and you, as Trustee, on behalf of the
holders of Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2000-C1 (the "Certificates") in
connection with the transfer by [___________________________________] to the
undersigned (the "Purchaser") of $____________ aggregate Certificate Balance of
Class A-X, Class E, Class, F, Class G, Class H and Class J Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. The Purchaser is not a "U.S. person" within the meaning of Regulation S
(a "Non-U.S. Person") under the Securities Act of 1933, as amended (the
"Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account, (b) for resale to Non-U.S. Persons
in transactions under Regulation S or (c) for resale to "qualified institutional
buyers" in transactions under Rule 144A under the Securities Act, and not in any
event with a view to, or for resale in connection with, any distribution
thereof. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions), as expressed herein.
3. The Purchaser has reviewed the Offering Circular and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder, or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Trustee and all Certificateholders present and
future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. The Purchaser is not a U.S. Person and under applicable law in effect
on the date hereof, no taxes will be required to be withheld by the Trustee (or
its agent) with respect to distributions to be made on the Certificate. The
Purchaser has attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the beneficial owner of the
Certificate and states that such Purchaser is not a U.S. Person or (ii) two duly
executed copies of IRS Form 4224 (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that interest and
original issue discount on the Certificate and Permitted Investments is, or is
expected to be, effectively connected with a U.S. trade or business. The
Purchaser agrees to provide to the Trustee updated IRS Forms W-8 or IRS Forms
4224, as the case may be, any applicable successor IRS forms, or such other
certifications as the Trustee may reasonably request, on or before the date that
any such IRS form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most recent IRS form
of certification furnished by it to the Trustee.
For this purpose, "U.S. Person" means (i) a citizen or resident of the
United States, (ii) a corporation or partnership organized in or under the laws
of the United States, any state thereof or the District of Columbia, (iii) an
estate the income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) a trust if a court within the United
States is able to exercise primary supervision of the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust.
8. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each, a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of the Certificates by such insurance company would be
eligible for the exemptive relief from the prohibited transaction provisions of
ERISA and Section 4975 of the Code that is available under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a) or
(b) above, such Purchaser is required to provide to the Trustee an opinion of
counsel in form and substance satisfactory to the Trustee and the Depositor to
the effect that the acquisition and holding of such Certificate by such
purchaser or transferee will not constitute or result in a non-exempt prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law and will
not subject the Trustee, the Pool I Servicer, the Pool II Servicer, the Pool I
Special Servicer, the Pool II Special Servicer, the Initial Purchaser or the
Depositor to any obligation or liability (including obligations or liabilities
under ERISA, Section 4975 of the Code or any Similar Law) in addition to those
set forth in the Pooling and Servicing Agreement, which opinion of counsel shall
not be at the expense of the Depositor, the Pool I Servicer, the Pool II
Servicer, the Pool I Special Servicer, the Pool II Special Servicer, the Trustee
or the Trust Fund.
10. In the event that we purchase any of the Certificates, we will acquire
Certificates having a minimum purchase price of not less than $25,000 for our
own account or for any separate account for which we are acting.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this Regulation S
Investment Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By: __________________________________
Name:
Title:
<PAGE>
EXHIBIT C-3
FORM OF INVESTMENT REPRESENTATION LETTER -
INSTITUTIONAL ACCREDITED INVESTOR
Wells Fargo Bank Minnesota,
National Association
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)--
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 2000-C1
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2000-C1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of July 11, 2000 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities Corp.,
as Depositor, CapMark Services, L.P., as Pool I Servicer, National Consumer
Cooperative Bank, as Pool II Servicer and Pool II Special Servicer, Lennar
Partners, Inc., as Pool I Special Servicer you, as Trustee, on behalf of the
holders of Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2000-C1 (the "Certificates") in
connection with the transfer by [______________________________________] to the
undersigned (the "Purchaser") of $____________ aggregate Certificate Balance of
Class N Certificates (the "Certificate"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Pooling and Servicing Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the "Act")),
or an entity in which all of the equity owners are accredited investors within
the meaning of Rule 501(a)(1), (2) or (3) under the Act (an "Accredited
Investor") and we are acquiring the Certificates for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Act, and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Certificates, and we and any accounts for which we are acting
are each able to bear the economic risk of our or their investment.
2. (A) any purchase of the Certificate by the Purchaser will be for its
own account or for the account of one or more other accredited investors or as
fiduciary for the account of one or more trusts, each of which is an "accredited
investor" within the meaning of Rule 501(a)(7) under the Act and for each of
which the Purchaser exercises sole investment discretion or (B) the Purchaser is
a "bank," within the meaning of Section 3(a)(2) of the Act, or a "savings and
loan association" or other institution described in Section 3(a)(5)(A) of the
Act that is acquiring the Certificate as fiduciary for the account of one or
more institutions for which the Purchaser exercises sole investment discretion.
3. The Purchaser has received and reviewed the Confidential Offering
Circular relating to the Certificate (the "Offering Circular") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Pooling and Servicing Agreement in its capacity as an owner of a
Certificate or Certificates, as the case may be (each a "Certificateholder"), in
all respects as if it were a signatory thereto. This undertaking is made for the
benefit of the Trust, the Trustee and all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. The Purchaser is a U.S. Person (as defined below) and it has attached
hereto an Internal Revenue Service ("IRS") Form W-9 (or successor form).
For this purpose, "U.S. Person" means (i) a citizen or resident of the
United States, (ii) a corporation or partnership created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia, (iii) an estate the income of which is includible in gross income for
United States tax purposes, regardless of its source or (iv) a trust if a court
within the United States is able to exercise primary supervision of the
administration of the trust and one or more U.S. Persons have the authority to
control all substantial decisions of the trust.
8. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), or (b) a person acting on behalf of or using the assets
of any such Plan (including an entity whose underlying assets include Plan
assets by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of the Certificates by such insurance company would be
eligible for the exemptive relief from the prohibited transaction provisions of
ERISA and Section 4975 of the Code that is available under Sections I and III of
Prohibited Transaction Class Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a) or
(b) above, such Purchaser is required to provide to the Trustee an opinion of
counsel in form and substance satisfactory to the Trustee and the Depositor to
the effect that the acquisition and holding of such Certificate by such
purchaser or transferee will not constitute or result in a non-exempt prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, and will
not subject the Trustee, the Pool I Servicer, the Pool II Servicer, the Pool I
Special Servicer, the Pool II Special Servicer, the Initial Purchaser or the
Depositor to any obligation or liability (including obligations or liabilities
under ERISA, Section 4975 of the Code or any Similar Law) in addition to those
set forth in the Pooling and Servicing Agreement, which opinion of counsel shall
not be at the expense of the Depositor, the Pool I Servicer, the Pool II
Servicer, the Pool I Special Servicer, the Pool II Special Servicer, the Trustee
or the Trust Fund.
10. In the event that we purchase any of the Certificates, we will acquire
Certificates having a minimum purchase price of not less than $100,000 for our
own account or for any separate account for which we are acting.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this Accredited Investor
Investment Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By: __________________________________
Name:
Title:
<PAGE>
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[Name of Officer], being first duly sworn, deposes and says:
1. That [he] [she] is a [Title of Officer] of [Name of Transferee] (the
"Transferee"), a [description of type of entity] duly organized and existing
under the laws of the State [Commonwealth] of [ ], on behalf of which he makes
this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-C1,
Class [R] [LR] Certificates (the "Class [R] [LR] Certificate") (i) is not a
Disqualified Organization, an ERISA Prohibited Holder, or a Non-U.S. Person (as
defined in Article I of the Pooling and Servicing Agreement, dated as of July
11, 2000, by and among Credit Suisse First Boston Mortgage Securities Corp., as
Depositor, CapMark Services, L.P., as Pool I Servicer, National Consumer
Cooperative Bank, as Pool II Servicer and Pool II Special Servicer, Lennar
Partners, Inc., as Pool I Special Servicer and Wells Fargo Bank Minnesota, N.A.,
as Trustee (the "Pooling and Servicing Agreement") and will endeavor to remain
other that a Disqualified Organization and other than a Non-U.S. Person for so
long as it retains its ownership interest in the Class [R] [LR] Certificate, or
(ii) is acquiring the Class [R] [LR] Certificate for the account of, or as agent
(including as a broker, nominee, or other middleman) for, a Person other than a
Disqualified Organization or a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they have come
due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit, and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person. To the extent
not defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
8. [That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 10.01(c) of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Servicer as the Transferee's agent in performing the function of "tax
matters person."]
9. The Transferee has reviewed, and agrees to be bound by and to abide by,
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this ____ of ______, 2000.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be the [Title of Officer] of the Transferee, and acknowledged to me that [he]
[she] executed the same as [his] [her] free act and deed and the free act and
deed of the Transferee.
Subscribed and sworn before me this ____ day of ______ 2000.
NOTARY PUBLIC
COUNTY OF ___________________________
STATE OF ___________________________
My commission expires the ___ day of __________, 20__.
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
Wells Fargo Bank Minnesota,
National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS)--
Credit Suisse First Boston Mortgage
Securities Corp., Commercial
Mortgage Pass-Through
Certificates, Series 2000-C1
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2000-C1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the requirements set forth in paragraphs 3 and 4 thereof are not satisfied
or that the information contained in paragraphs 3 and 4 thereof is not true.
Very truly yours,
[Transferor]
_______________________________________
Name:
<PAGE>
EXHIBIT E
LIST OF MEZZANINE LOANS
Loan No. Loan Name
1 Exchange Apartments
2 Selig - Third and Broad
3 Selig - 3131 Elliot Building
4 Selig - Airborne Building
9 L'Enfant Participation
14 Hotel Union Square/Diva
<PAGE>
EXHIBIT F
FORM OF REQUEST FOR RELEASE
<PAGE>
EXHIBIT G-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
COMPARATIVE FINANCIAL STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 P7 P8 P57 S72 S69 S70 S83 S84
--------------------------------------------------------------------------------------------------------------------------
Original Underwriting Information
--------------------------------------------------------------------------------------------------------------------------
Basis Year
--------------------------------------------------------------------------------------------------------------------------
Last Current Paid Financial
Prospectus ID City State Property Allocated Thru Allocated Info as % Occ Total $ NCF (1)
Inspect Date Loan Amount Date Debt Service of Date Revenue DSCR
--------------------------------------------------------------------------------------------------------------------------
yy/mm yy/mm
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all properties currently in deal with or without information largest to smallest loan
This report should reflect the information provided in the CSSA Property and Loan file
Total: $ $ WA $ $ WA
--------------------------------------------------------------------------------------------------------------------------
<CAPTION>
-----------------------------------------------------------------------------------------------------------
P65 P64 P59 P94 P95 P58 P57 P52 P92 P93
-----------------------------------------------------------------------------------------------------------
2nd Preceding Annual Preceding Annual
Operating Information OperatingInformation
-----------------------------------------------------------------------------------------------------------
as of ______ Normalized as of ______ Normalized
-----------------------------------------------------------------------------------------------------------
Financial
Financial Total (1) Info Total (1)
Info as of % Occ Revenue $ NCF DSCR as of % Occ Revenue $ NCF DSCR
Date Date
-----------------------------------------------------------------------------------------------------------
yy/mm yy/mm
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ $ WA
-----------------------------------------------------------------------------------------------------------
<CAPTION>
-----------------------------------------------------------------------------------------------
P72 P73 P66 P96 P97 (2)
-----------------------------------------------------------------------------------------------
Most Recent Financial Net Change
Information
-----------------------------------------------------------------------------------------------
*normalized or actual Preceding & Basis
-----------------------------------------------------------------------------------------------
FS %
FS Start Date End % Occ Total $ NCF (1) % Occ Total (1)
Date Revenue DSCR Revenue DSCR
-----------------------------------------------------------------------------------------------
yy/mm yy/mm
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ WA
-----------------------------------------------------------------------------------------------
</TABLE>
(1) DSCR should match to Operating Statement and is normally calculated using
NCF/Debt Service times the allocated loan percentage.
(2) Net change should compare the latest year to the underwriting year
<PAGE>
EXHIBIT G-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
DELINQUENT LOAN STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or S63 P8 P7 P37 P39
-----------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c)
-----------------------------------------------------------------------------------------------------------------------------------
Short Name Scheduled
Prospectus ID (When Property City State Sq Ft or Paid Thru Principal Total P&I Total
Appropriate) Type Units Date Balance Advances To Date Expenses To Date
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
-----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------
P38 P25 P10 P11 P58 or P73 P92 or P96 P93 or P97
------------------------------------------------------------------------------------------------------------------------------
(d) (e)=a+b+c+d
------------------------------------------------------------------------------------------------------------------------------
Current
Other Advances Total Exposure Current Interest Maturity LTM NCF Date LTM NCF LTM DSCR (NCF)
(Taxes & Escrow) Monthly P&I Rate Date
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
------------------------------------------------------------------------------------------------------------------------------
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or
normalized YTD
* Workout Strategy should match the CSSA Loan file using abbreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification, DPO -
Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan,
TBD - To be determined etc . . . ). It is possible to combine the status
codes if the loan is going in more than one direction. (i.e.
FCL/Mod, BK/Mod, BK/FCL/DPO)
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
*** How to determine the cap rate is agreed upon by underwriter and special
servicer - to be provided by a third party.
<PAGE>
EXHIBIT G-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
DELINQUENT LOAN STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P74 P75
-------------------------------------------------------------------------------------------------------------------------
(f)=P38/P81 (g)=(.90*f)-e
-------------------------------------------------------------------------------------------------------------------------
Appraisal
Short Name Property Value using Valuation BPO or Loss using 90%
Prospectus ID (When Type City State NOI & Cap Rate Date Internal Appr. or BPO (f)
Appropriate) Value**
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
-------------------------------------------------------------------------------------------------------------------------
<CAPTION>
------------------------------------------------------------------------------------------
P35 P77 P79 P42 P82 P76
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Expected
Total Appraisal Resolution FCL FCL Workout
Reduction Transfer Date Date Start Sale Strategy Comments
Realized Date Date
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
------------------------------------------------------------------------------------------
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or
normalized YTD
* Workout Strategy should match the CSSA Loan file using abbreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification, DPO -
Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan,
TBD - To be determined etc . . . ). It is possible to combine the status
codes if the loan is going in more than one direction. (i.e.
FCL/Mod, BK/Mod, BK/FCL/DPO)
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
*** How to determine the cap rate is agreed upon by underwriter and special
servicer - to be provided by a third party.
<PAGE>
EXHIBIT G-3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
HISTORICAL LOAN MODIFICATION REPORT
AS OF ____________________
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 P49 P48 P7* P7* P50*
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Balance When
Mod / Extension Sent to Balance at the
Prospectus ID City State Extension per Docs or Effect Date Special Effective Date of Old Rate
Flag Servicer Servicer Rehabilitation
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
Information is as of modification. Each line it should not
change in the future. Only new modifications should be added.
Total For All Loans:
-----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------------------
P50* P25* P25* P11* P11* P47
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
(2) Est.
Future
# Mths for Old New Total # (1) Realized Interest Loss
Rate Change New Rate P&I New P&I Old Maturity Maturity Mths for Loss to to Trust $ COMMENT
Change of Mod Trust $ (Rate
Reductions)
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
Information is as of modification. Each line it should not
change in the future. Only new modifications should be added.
Total For All Loans:
-----------------------------------------------------------------------------------------------------------------------------------
</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.
<PAGE>
EXHIBIT G-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
AS OF ____________________
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P45 /P3 P75
---------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b)
---------------------------------------------------------------------------------------------------------------------------
Short Name Latest Effect
Prospectus ID (When Property City State Received From Appraisal or Date of Sales Price
Appropriate) Type Liquidation Brokers Opinion Liquidation
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
Total all Loans:
Current Month Only:
(h) Servicing Fee Expense is the work out fee charged by the special servicer
---------------------------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------------------------------------
P45 P7 P37 P39+P38
---------------------------------------------------------------------------------------------------------------------
(d) (e) (f) (g) (h) (i)=d-(f+g+h) (k)=i-e
---------------------------------------------------------------------------------------------------------------------
Servicing
Net Amt Received Scheduled Balance Total P&I Total Fees Net Proceeds Actual Losses
from Sale Advanced Expenses Expense Passed thru
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
Total all Loans:
Current Month Only:
(h) Servicing Fee Expense is the work out fee charged by the special servicer
---------------------------------------------------------------------------------------------------------------------
<CAPTION>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(m) (n)=k+m (o)=n/e
--------------------------------------------------------------------------------
Date Loss Passed Total Loss %
thru Minor Adj Loss of
Minor Adj to Trust Passed thru with Scheduled
Adjustment Balance
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
Total all Loans:
Current Month Only:
(h) Servicing Fee Expense is the work out fee charged by the special servicer
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT G-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
REO STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or S63 P8 P7 P37
----------------------------------------------------------------------------------------------------------------
(a) (b)
----------------------------------------------------------------------------------------------------------------
Allocated Loan
Short Name Property Sq Ft or Paid Thru Amount or Total P&I
Prospectus ID (When Type City State Units Date Scheduled Loan Advances To
Appropriate) Balance Date
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------
<CAPTION>
----------------------------------------------------------------------------------------------------------------
P39 P38 P25 P11 P58 or P73 P93 or P97
----------------------------------------------------------------------------------------------------------------
(c) (d) (e)=a+b+c+d (a)
----------------------------------------------------------------------------------------------------------------
Current
Total Other Advances Total Monthly Maturity LTM NCF Date LTM DSCR (NCF)
Expenses To Date (Taxes & Escrow) Exposure P&I Date
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------
</TABLE>
REOs that are more than one loan should use the Allocated Loan Amount and
prorate all advances and expenses.
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
<PAGE>
EXHIBIT G-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
REO STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P74
--------------------------------------------------------------------------------------------------------
(f)=(k/j)
--------------------------------------------------------------------------------------------------------
Appraisal
Short Name Value BPO or
Prospectus ID (When Property City State Valuation using NOI Internal
Appropriate) Type Date & Cap Value
Rate Source**
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
--------------------------------------------------------------------------------------------------------
<CAPTION>
--------------------------------------------------------------------------------------------------------
P75 P35 P77 P82 P79
--------------------------------------------------------------------------------------------------------
(g) (h)=(.90*g)-e
--------------------------------------------------------------------------------------------------------
Appraisal Total
BPO or Loss using Appraisal Transfer REO Pending
Internal 90% Appr. or Reduction Date Acquisition Resolution Comments
Value BPO (f) Realized Date Date
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
--------------------------------------------------------------------------------------------------------
</TABLE>
REOs that are more than one loan should use the Allocated Loan Amount and
prorate all advances and expenses.
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
<PAGE>
EXHIBIT G-6
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
SERVICER WATCH LIST
AS OF ____________________
<TABLE>
<CAPTION>
-------------- ------------ -------- ------- ----- ----------- ------ --------- ----------- --------- -----------------------------
S4 S55 S61 S57 S58 P7 P8 P11 P93 P97
-------------- ------------ -------- ------- ----- ----------- ------ --------- ----------- --------- -----------------------------
Short Name Scheduled Paid Preceding Most
Prospectus ID (When Property City State Loan Thru Maturity Fiscal Yr Recent Comment / Action to be taken
Appropriate) type Balance Date Date DSCR NCF DSCR NCF
-------------- ------------ -------- ------- ----- ----------- ------ --------- ----------- --------- -----------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans on watch list and reason sorted in descending balance order.
Should not include loans that are specially serviced
Total $
-------------- ------------ -------- ------- ----- ----------- ------ --------- ----------- --------- -----------------------------
</TABLE>
<PAGE>
EXHIBIT G-7
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
OPERATING STATEMENT ANALYSIS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
Prospectus Loan ID
Sch Bal/Paid to Date/Allocated %
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Underwriting 1994 1995 1996 Trailing
------------ ---- ---- ---- --------
Occupancy Rate*
Average Rental Rate
* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME: No. of Mos.
Number of Mos. Prior Year Current Yr.
Period Ended Underwriting 1994 1995 1996 97 Trailing** 1996-Base 1996-1995
Statement Classification Base Line Normalized Normalized Normalized as of / /97 Variance Variance
------------ ---------- ---------- ---------- -------------- --------- ---------
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
Effective Gross Income $0.00 $0.00 $0.00 $0.00 $0.00 % %
Normalized - Full year financial statements that have been reviewed by the underwriter or
Servicer.
** Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses $0.00 $0.00 $0.00 $0.00 $0.00 % %
Operating Expense Ratio
Net Operating Income $0.00 $0.00 $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
Total capital Items $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
N.O.I. After Capital Items $0.00 $0.00 $0.00 $0.00 $0.00
Debt Service (per Servicer) $0.00 $0.00 $0.00 $0.00 $0.00
Cash Flow after debt service $0.00 $0.00 $0.00 $0.00 $0.00
DSCR: (NOI/Debt Service)
(1)DSCR: (after reserves\Cap exp.)
Source of Financial Data
(i.e., operating statements, financial statements, tax return, other)
Notes and Assumptions
------------------------------------------------------------------------------------------------------------------------------------
The years shown above will roll always showing a three year history. 1996 is the current year financials; 1995 is the prior year
financials. This report may vary depending on the property type and because of the way information may vary in each borrowers
statement. Rental Income needs to be broken down, differently whenever possible for each property type as follows: Retail: 1) Base
Rent 2) Percentage rents on cashflow.
Hotel: 1) Room Revenue 2) Food/Beverage Nursing home: 1) Private 2) Medicaid 3) Medicare
INCOME: COMMENT
EXPENSE: COMMENT
CAPITAL ITEMS: COMMENT
(1) Used in the Comparative Financial Status Report
</TABLE>
<PAGE>
EXHIBIT G-8
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C1
FORM OF NOI ADJUSTMENT WORKSHEET FOR "YEAR"
AS OF ____________________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
LB Control Number
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Borrower Adjustment Normalized
-------- ---------- ----------
Occupancy Rate*
Average Rental Rate
* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME:
Number of Mos. "Year"
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
------- ---------- ----------
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
Effective Gross Income $0.00 $0.00 $0.00
Normalized - Full year financial statements that have been reviewed by the Servicer
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses $0.00 $0.00 $0.00
Operating Expense Ratio
Net Operating Income $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
Total capital Items $0.00 $0.00 $0.00
N.O.I. After Capital Items $0.00 $0.00 $0.00
Debt Service (per Servicer) $0.00 $0.00 $0.00
Cash Flow after debt service $0.00 $0.00 $0.00
(1) DSCR:(NOI/Debt Service)
DSCR: (after reserves\Cap exp.)
Source of Financial Data
Notes and Assumptions (i.e. operating statements, financial statements, tax return, other) Notes and Assumptions
------------------------------------------------------------------------------------------------------------------------------------
This report should be completed by the Servicer for any "Normalization" of the Borrower's numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way information
may vary in each borrower's statement.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
(1) Used in the Comparative Financial Status Report
</TABLE>
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
------------ --------- -------- ------------------ ----------------
1 2 3 4 5
Group Offering Doc ID Orig Note Amt
Transid ID Svcrn prospln oa
------------ --------- -------- ------------------ ----------------
--------------- ------------------ ---------------- ---------------
6 7 8 9
Orig in Term Orig Amort term Orig Note rate Orig pmt rate
ot oaterm oir oir
--------------- ------------------ ---------------- ---------------
-------------- ---------- ----------
10 11 12
Dt 1st Pmt int only
dfp gracedy io
-------------- ---------- ----------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
--------------- ----------------- ----------- ---------------- ----------------
3 4 13 14 15
Offering Doc ID in rt typ int accr meth cd
svcrln prospin Balloon irtype intaccrcod
--------------- ----------------- ----------- ---------------- ----------------
--------------- ------------------ --------------------- ----------------
16 17 18 19
int arr pmt type cd prepmt lkout end dt Y/M end date
intarrears pmttypcode pplkoenddt yldmntendd
--------------- ------------------ --------------------- ----------------
---------------------
20
Prepay Prem end dt
pppremendd
---------------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
--------------- ----------------- ----------------------- ---------------
3 4 21 22
Offering Doc ID Prepay terms Arm Ind cod
svcrln prospin pptermdesc indexcd
--------------- ----------------- ----------------------- ---------------
------------- -------------- ------------------ --------------- ---------------
23 24 25 26 27
Rate adj 1 Pmt adj dt 1 ARM mgn Life cap Life floor
rateadjdt1 pmtadjdt1 Margin lifecap life floor
------------- -------------- ------------------ --------------- ---------------
--------------------
28
Periodic Rt inc lmt
pratinclmt
--------------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
------------- ----------------- ---------------------- -----------------------
3 4 29 30
Offering Doc ID Periodic Rt dec lmt Per Pmt adj max %
Svcrln prospin pratdeclmt ppadjmax
------------- ----------------- ---------------------- -----------------------
------------------- ------------------ ------------------- ---------------------
31 32 33 34
Per Pmt adj max $ Pmt freq Rt Reset freq mos pmt reset freq mos
ppadmaxamt pfreq rresetfreq presetfreq
------------------- ------------------ ------------------- ---------------------
----------------
35
Round cd
roundcode
----------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
------------ ------------------- ------------------ ---------------
3 4 36 37
Offering Doc ID Round incre ndx lookbk
svcrln prospin roundincre ndxlkbk
------------ ------------------- ------------------ ---------------
--------------- ----------------- ----------------- ------------------
38 39 40 41
Neg Am all Max Neg % max neg $ Rem term sec
negam maxneg maxneg amt rterm
--------------- ----------------- ----------------- ------------------
------------------- ----------------
12 43
Rem Am Term sec Mat Date sec
rematerm dmt
------------------- ----------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
77
-------------- ------------ ------------------ -------------- -----------------
3 4 44 45 46
Offering Doc Sched UPB sec secure ir Svc/trus free rt
svcrin ID prospin begschbal secureir svctterate
-------------- ------------ ------------------ -------------- -----------------
------------- -------------- --------------- -------------- --------------
47 48 49 50 51
frt/srt 1 frt/srt 2 frt/srt 3 frt/srt 4 frt/srt 5
srate 1 srate 2 srate 3 srate 4 srate 5
------------- -------------- --------------- -------------- --------------
---------------
52
Net Rt sec
secnetir
---------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
--------------- ----------------- --------------------- --------------
3 4 53 54
Offering Doc ID Per P&I pmt sec # of prop
svcrin prospln perpisec proptotal
--------------- ----------------- --------------------- --------------
--------------------------- --------------------------- --------------
55 56 57
Property name prop addr prop ci
propname propaddres propcity
--------------------------- --------------------------- --------------
-------------- ---------------
58 59
prop st Prop zip
propstate propzip
-------------- ---------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
------------------------ ------------------- ----------------- ---------------
3 4 60 61
Offering Doc ID Property Prop type cd
prospln County proptype
svcrln
------------------------ ------------------- ----------------- ---------------
--------------- -------------- --------------- -------------- --------------
62 63 64 68 66
Net Sq Ft sec # Units sec Year built NOI sec DSCR sec
netsqftsec nounits yrbuilt mrfytdnoi mrfytddscr
--------------- -------------- --------------- -------------- --------------
---------------
67
Appr Val sec
mrrecappr
---------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
------------------------- ------------------ ----------------- ---------------
3 4 68 69
Offering Doc ID Appr Dt Sec Phys Occ sec
prospln mrapprdt mrfytdpo
svcrln
------------------------- ------------------ ----------------- ---------------
--------------- -------------- --------------- ------------ --------------
70 71 72 73 74
Revenue sect Oper Exp sec Sec Fin aod Grnd lease
mrfytdrev mrfytdexp secfinaod Recoursc groundleas
--------------- -------------- --------------- ------------ --------------
------------------
75
Cross-Coll In grp
crcolngrp
------------------
<PAGE>
EXHIBIT G-9
LOAN SET-UP FILE
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
3 4 76 77 78
OFFERING DOC ID COLL ESCR COLL RESV LIEN POS SEC
SVCRLN PROPSLN COLLESCROW COLLOTHRES LIENPOSSEC
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-10
LOAN PERIODIC UPDATE FILE
-------------- ------------ ----------- -------------------- -----------
Group Offering Doc ID
transid groupid svcrln prosprln distribdt
-------------- ------------ ----------- -------------------- -----------
-------------- -------------- ------- ------------- ----- -------------
Mat Date sec
begschbal endschbal dpt index rate ir dmt
-------------- -------------- ------- ------------- ----- -------------
-----------------
Svc/trus fee rt
svctterate
-----------------
<PAGE>
EXHIBIT G-10
LOAN PERIODIC UPDATE FILE
<TABLE>
<CAPTION>
--------- ---------- ---------- ----------- ------------ ----------- -------- -------- ------------ -------- ------ ------ --------
frt/srt 1 frt/srt 2 frt/srt 3 frt/srt 4 frt/srt 5
svcrln srate1 srate2 srate3 srate4 srate5 netir idex_rate note_rate dnic dnpc schint schprin
--------- ---------- ---------- ----------- ------------ ----------- -------- -------- ------------ -------- ------ ------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-10
LOAN PERIODIC UPDATE FILE
<TABLE>
<CAPTION>
----------- ---------- ------------- ----------- -------- ----------- ----------- --------- ---------- ------- ---------- ---------
svcrin schpi negamdefin unprcoll othpradj liqppmtdt ppmtenyld ppintexc liqppcode aseramt aserdt asercum
----------- ---------- ------------- ----------- -------- ----------- ----------- --------- ---------- ------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-10
LOAN PERIODIC UPDATE FILE
<TABLE>
<CAPTION>
--------- ---------- ---------- --------- ----------- ----------- ----------- ----------- --------- ---------- ------------ -------
svcrln actenbal piadvos tiadvos oexpadvout Instat bankruptcy forecldt reodt bankrupdt netliqproc liqexp
--------- ---------- ---------- --------- ----------- ----------- ----------- ----------- --------- ---------- ------------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-10
LOAN PERIODIC UPDATE FILE
---------- ------------ ------------- ------------- ------------ ------------
svcrln reallosstr dtlstmod modcode modrate modpmtrat
---------- ------------ ------------- ------------- ------------ ------------
------------- -------------- ----------- -------------- ----------- -----------
prefyrrev prefyrexp prefyrnoi preyfyrdsam prefyrdscr prefyrocc
------------- -------------- ----------- -------------- ----------- -----------
<PAGE>
EXHIBIT G-10
LOAN PERIODIC UPDATE FILE
---------------- -------------- -------------- ------------- --------------
svcrln prefyrodt sprefyrrev sprefyrexp sprefyrnoi
---------------- -------------- -------------- ------------- --------------
-------------- -------------- ------------- -------------- --------------
Revenue sect
sprefyrds sprefyrdsc sprefyrpo sprefyraod mrfytdrev
-------------- -------------- ------------- -------------- --------------
--------------
Oper Exp sec
mrfytdexp
--------------
<PAGE>
EXHIBIT G-10
LOAN PERIODIC UPDATE FILE
---------- ----------- ------------- ------------ ---------------- -----------
NOI sec DSCR sec Phys Occ sec
svcrln mrfytdnoi mrfytdds mrfytddscr mrfytdpo mrfytdstdt
---------- ----------- ------------- ------------ ---------------- -----------
------------ --------------- ------------------ ------------ ---------------
Appr Val sec
mrfytdendd mrapprdt mrrecappr wkostrcod mrsstrandt
------------ --------------- ------------------ ------------ ---------------
<PAGE>
EXHIBIT G-10
LOAN PERIODIC FILE
<TABLE>
<CAPTION>
-------------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
primary master special
svcrln mrmsretdt dtasstres yrlastren Accrual fees fees fees Days
-------------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 3 4 5 6 7
Tran ID Loan ID Prosup Other Prop ID Distrib Crossed Property Name
Loan ID ID Date Collateralized
Loan Grouping
============== ============ ============ ============ ============ ============ ========================= =================
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 8 9 10 11 12 13 14 15 16
Tran ID Loan ID Zip County Prop Year Year Net SF
Address City State Code Type Built Renovated At Securitzn
Code
============ ============== ============================== ======== ===== ====== ======= ========= ====== ========= ==============
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 17 18 19 20 21 22 23 24 25 26
Tran ID Loan # of Prop Alloc. % Current Current Ground Other Most Most Date Asset
ID Units/Beds/Rooms Stat of Loan Alloc. % Alloc. Lease Escrow/ Recent Recent To
At At Loan Reserve Appraisal Appraisal Be Resolved
Securization Securitization Amount Balances Date Value
======== ====== ================ ====== ============ ========= =========== ======== ============ ========== =========== ===========
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 27 28 29 30 31 32 33 34 35 36
Tran ID Loan ID Foreclosure REO Occ. Occ. Date Lease % SF % SF % SF % SF % SF
Date Date % Date Rollover expire expire expire expire expire
Review 1-12 mo. 13-24 mo. 25-36 mo. 37-48 mo. 49-60 mo.
============ ============ =========== ======== ====== ========= ============ ========== ========== ========== ========== =========
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 37 38 39 40 41 42 43 44
Tran ID Loan ID Largest Tenant SF 2nd SF 2nd 3rd Largest SF 3rd Fiscal Year Securitization
Largest Largest Largest Tenant Largest End Month Finan.
Tenant Tenant Tenant Tenant As of Date
========= ========== ================ =========== =========== ============= ============= ========= ============== ==============
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 45 46 47 48 49 50
Tran ID Loan ID Revenue At Oper. Exp. At NOI At DSCR At Appraisal Value Appraisal Date
Securitization Securitization Securitization Securitization Securitization Securitization
================ ============= ================ =============== ================ =============== ================== ===============
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
51 52 53 54
Physical Occup Date of Last Preceding FY Preceding FY
At Securitization Inspection Fin. as of Date Revenue
================== =============== ================ ===============
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 55 56 57 58 59 60
Tran ID Loan ID Preceding FY Preceding FY Preceding FY Preceding FY Preceding FY 2nd Preceding
Expenses NOI Debt Service DSCR Occupancy FY Fin as of Date
=============== ============= =============== ============= ============= ============== ================ ==================
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
61 62 63
2nd Preceding 2nd Preceding 2nd Preceding
FY Revenue FY Expenses FY NOI
================ ================= ===============
<PAGE>
EXHIBIT G-11
PROPERTY FILE
<TABLE>
<CAPTION>
1 2 64 65 66 67 68 69 70
Tran ID Loan ID 2nd Preceding 2nd 2nd Most Recent Most Recent Most Recent Most Recent
FY Debt Service Preceding Preceding FY Fin as of FY Revenue FY Expenses FY NOI
FY DSCR FY Occup % date
============ ======== ================ ============= ============= ================= ============ ============= =============
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
71 72 72
Most Recent Most Recent Most Recent
FY Debt FY DSCR FY Occup %
Service
=============== ============ ==============
<PAGE>
EXHIBIT G-12
CSSA
BOND LEVEL FILE LAYOUT
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
VERSION 1.0 (12/31/98)
<TABLE>
<CAPTION>
----------------------------------- ------------------------ -------------------------------------------------------
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 ` 17 Numeric 0.075 Annualized Interest Rate Applicable To The
Rate/Pass-Through Rate Calculation Of Current Period Remittance Interest
Accrual Method 18 Numeric 1 I=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 21 Numeric 1000.00 The Amount Of Prepayment Penalties Allocated
Allocation
Yield Maintenance Allocation 22 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated
Other Interest Shortfall 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
Cumulative Prepayment 29 Numeric 1000.00 The Amount Of Prepayment Penalties Allocated To Date
Penalty/Premium Allocation
Cumulative Yield Maintenance 30 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated
Allocation 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 35 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided
Rating Agency To The Trustee By Duff & Phels
Fitch - Original 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 38 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided
Rating Agency 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 41 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided
Rating Agency 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 43 AN AAA The Most Recent Rating Of The Class By Standard &
Rating Poors
Standard & Poors - Date 44 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided
Transmitted From Rating Agency To The Trustee By Standard & Poors
----------------------------------- ------------------------ -------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT G-13
FORM OF COLLATERAL SUMMARY FILE
CSSA
COLLATERAL SUMMARY FILE LAYOUT
COLLATERAL LEVEL SUMMARY - SUMMARIZES CSSA 100.1 PERIODIC FILE
VERSION 1.0 (12/31/98)
<TABLE>
<CAPTION>
--------------------------- ------- ------------------- ---------------------------------------------------
PERIODIC FORMAT
FIELD
FIELD NAME REFERENC # 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 5 Numeric 99 Number of loans at end of current period
loan count
Ending current period 7 6 Numeric 1000000.0Aggregate scheduled balance of loans at end of
collateral balance current period
1 month Delinquent - 7 Numeric 1 Number of loans one month delinquent
number
1 month Delinquent - 8 Numeric 1000.00 Scheduled principal balance of loans one month
scheduled balance delinquent
2 months Delinquent - 9 Numeric 1 Number of loans two months delinquent
number
2 months Delinquent - 10 Numeric 1000.00 Scheduled principal balance of loans two months
scheduled balance delinquent
3 months Delinquent - 11 Numeric 1 Number of loans three months delinquent
number
3 months Delinquent - 12 Numeric 1000.00 Scheduled principal balance of loans three months
scheduled balance delinquent
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure - overrides loans
in delinquency
Foreclosure - scheduled 14 Numeric 1000.00 Scheduled principal balance of loans in
balance 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 - 17 Numeric 1 Number of specially serviced loans - includes
number loans in delinquency, foreclosure, REO
Specially serviced - 18 Numeric 1000.00 Scheduled principal of Specially Serviced loans
scheduled balance
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 27+28 23 Numeric 1000.00 Includes prepayments in full, partial
principal pre-payments, curtailments in the current period
Total Penalty for the 24 Numeric 1000.00 The aggregate prepayment or yield maintenance
period penalties on the loans for the period.
Current realized losses 47 25 Numeric 1000.00 Realized losses (gain) in the current period
(gains)
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 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Reduction
Total P&I Advance 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of The
Outstanding Current Period
Total T&I 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End
AdvanceOutstanding Of The Current Period
Other Expense Advance 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of The
Outstanding 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>
<PAGE>
EXHIBIT H
FORM OF AFFIDAVIT OF LOST NOTE
STATE OF )
) ss.:
COUNTY OF )
_______________________________ , ________________________________ , being
duly sworn, deposes and says:
1. that he/she is an authorized signatory of _________________________ (the
"Noteholder");
2. that the Noteholder is the owner and holder of a mortgage loan in the
original principal amount of $____________________ secured by a mortgage (the
"Mortgage") on the premises known as _____________________ ____________________,
located in ____________________;
3. that the Noteholder, after having conducted a diligent investigation of
its records and files, has been unable to locate the following original note and
believes that said original note has been lost, misfiled, misplaced or destroyed
due to a clerical error:
a note in the original sum of $___________ made by
_____________________, to __________________________, under date
of ___________ (the "Note");
4. that the Note is now owned and held by the Noteholder;
5. that the Note has not been paid-off, satisfied, assigned, transferred,
encumbered, endorsed, pledged, hypothecated, or otherwise disposed of and that
the original Note has been either lost, misfiled, misplaced or destroyed;
6. that no other person, firm, corporation or other entity has any right,
title, interest or claim in the Note except the Noteholder; and
7. upon assignment of the Note by the Noteholder to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor" or the "Purchaser") and
subsequent assignment by the Depositor to the Trustee for the benefit of the
holders of the Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2000-C1 (the "Trustee") (which
assignment may, at the discretion of the Depositor, be made directly by the
Noteholder to the Trustee) the Noteholder covenants and agrees (a) to promptly
deliver to the Trustee the original Note if it is subsequently found, and (b) to
indemnify and hold harmless the Trustee and its successors and assigns from and
against any and all costs, expenses and monetary losses arising as a result of
the Noteholder's or the Depositor's failure to deliver said original Note to the
Trustee.
NAME OF NOTEHOLDER
By:____________________________________
Authorized Signatory
Sworn to before me this
_________ day of ____________, 2000
<PAGE>
EXHIBIT I
INVESTOR CERTIFICATION
Date:
Wells Fargo Bank Minnesota, N.A.
Sixth & Marquette
Minneapolis, Minnesota 55479-0113
Attention:__Corporate Trust Services (CMBS)
____________Credit Suisse First Boston Mortgage Securities Corp., Series
2000-C1
In accordance with Section 4.02 of the Pooling and Servicing Agreement,
dated as of July 11, 2000 (the "Agreement"), among Credit Suisse First Boston
Mortgage Securities Corp. as Depositor, CapMark Services, L.P., as Pool I
Servicer, National Consumer Cooperative Bank, as Pool II Servicer and Pool II
Special Servicer, Lennar Partners, Inc., as Pool I Special Servicer and you, as
Trustee, with respect to the Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-C1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
____ Certificates.
2. The undersigned is requesting, pursuant to Section 4.02 of the Agreement,
is requesting access to certain information (the "Information") on the
Trustee's website and/or is requesting the information identified on the
schedule attached hereto (also, the "Information") pursuant to Section 4.02
of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, or providing access in connection therewith, the undersigned
will keep the Information confidential (except from such outside persons as
are assisting it in making an evaluation in connection with purchasing the
related Certificates, from its accountants and attorneys, and otherwise
from such governmental or banking authorities or agencies to which the
undersigned is subject), and such Information will not, without the prior
written consent of the Trustee, be otherwise disclosed by the undersigned
or by its officers, directors, partners, employees, agents or
representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided that the undersigned may provide
all or any part of the Information to any other person or entity that holds
or is contemplating the purchase of any Certificate or interest therein,
but only if such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Trustee and the Trust Fund for any loss, liability or expense incurred
thereby with respect to any such breach by the undersigned or any of its
Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized signatory, as of the day and year written above.
_________________________________
Beneficial Owner or Prospective
Purchaser
Name: ___________________________
Title: __________________________
Company:_________________________
Phone:___________________________
<PAGE>
EXHIBIT J
UNDERWRITTEN DEBT SERVICE COVERAGE RATIOS
<PAGE>
EXHIBIT K
FORM OF NCCB SUBORDINATION AGREEMENT
<PAGE>
EXHIBIT L
FORM OF REPORT REGARDING ADVANCES
